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Class : BBA LLB + BA LLB SEMESTER 5

Paper Code : LLB301

Subject : Environmental Law

Faculty Name : Ms. Ridam Aggarwal

Unit 1

Environment protection: National and international perspective Environment:

An introduction

(1) Environment : Meaning

-The expression―environment connotes surroundings, environment contains

air, water, food and sunlight etc. According to Section 2(a) of the Indian
Environment (Protection) Act, 1986, the term ―Environment‖ includes water,
air and land and human beings, other living creatures, plants, micro-organism
and property. Environment means all the essential and necessary elements that
are first and foremost needs for the survival and basic and for the existence of
life and living and non living creatures. Those elements which are called the
environment.

(2) Environment Pollution: Meaning and Issues.

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Environment pollution refers to the introduction of harmful pollutants into the

environment. These pollutants contaminates the environment. It has a hazardous
effect on the natural world and on the activities of living beings.

The major types of environmental pollution are air pollution, water pollution, noise
pollution, thermal pollution, soil pollution and light pollution. With the dawn of the
age of science and technology, there has been huge growth and development of
human potentials. The surge in pollution is often attributed to the wide scale
urbanization and large-scale industrialization, which is in turn a product of our
advancement in science and technology and, it is here that man first began losing
control and became victim of his own creations.

The sources and causes of environmental pollution include the following:

 Industrial activities: The industries all over the world that brought
prosperity and affluence, made inroads in the biosphere and disturbed the
ecological balances. The pall of smoke, the swirling gases, industrial
effluents and the fall-out of scientific experiments became constant health
hazards, polluting and contaminating both air and water. The improper
disposal of industrial wastes are the sources of
soil and water pollution. Chemical waste resulting from industry can pollute
lakes, rivers and seas and soil too as well as releasing fumes.
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 Dumping solid waste: Household and commercial waste pollutes the

environment when not disposed of properly.

 Vehicles: The smoke emitted by vehicles using petrol and diesel and the
cooking coal also pollutes the environment. The multiplication of vehicles,
emitting black smoke that, being free and unfettered, spreads out and mixes
with the air we breathe. The harmful smoke of these vehicles causes air
pollution. Further, the sounds produced by these vehicles produces causes
noise-pollution.

 Rapid urbanization and industrialization: The urbanization and the rapid

growth of industrialization are causing through environmental pollution the
greatest harm to the plant life, which in turn causing harm to the animal
kingdom and the human lives.

 Population overgrowth: Due to the increase in population, particularly in

developing countries, there has been surge in demand for basic food,
occupation and shelter. The world has witnessed massive deforestation to
expand absorb the growing population and their demands.

 Combustion of fossil fuels: The combustion of fossil fuels pollutes the air,
the soil and the water with noxious gases such as CO2 and CO.
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 Agricultural waste: Fertilizers and pesticides used in agriculture are key

causes of environmental pollution.

b. Constitutional Guidelines

(1) Right to Wholesome environment: Evolution and Application

Ans- The right to live in a clean and healthy environment is not a recent invention
of the higher judiciary in India. The right has been recognized by the legal system
and the judiciary in particular for over a century or so. The only difference in the
enjoyment of the right to live in a clean and healthy environment today is that it
has attained the status of a fundamental right the violation of which, the
Constitution of India will not permit. The judiciary has managed to increase the
ambit of Article 21 of the constitution of India, through various judicial
pronouncements, to include the Right to a healthy and clean environment to be a
fundamental right under the right to life.

Judicial Pronouncements on Right to clean and healthy environment as a

fundamental right:

Article 21 of the constitution of India provides for the right to life and personal
liberty, it states “No person shall be deprived of his life or personal liberty except
according to procedure established by law.” This article imposes a duty on the state
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to protect the life and liberty of the people. The concept of the right to life has been
broadened through the judicial pronouncements. While resolving cases relating to
the environment, the judiciary considered the right to clean or the good
environment as fundamental to life and upheld as a fundamental right.

The Judiciary has played a vital role in interpreting the Article 21 of the Indian
Constitution. The scope of Article 21 of the Constitution has been considerably
expanded by the Indian Supreme Court, which has interpreted the right of life to
mean the right to live a civilized life and it also includes the right to clean
environment. Following are some important judicial pronouncements by the apex
court of India in this regards:

Subhash Kumar v. State of Bihar

In the instant case, the Court observed that ‘right to life guaranteed by article 21
includes the right of enjoyment of pollution-free water and air for full enjoyment of
life.’ Through this case, the Court recognized the right to a wholesome
environment as part of the fundamental right to life. This case also indicated that
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the municipalities and a large number of other concerned governmental agencies

could no longer rest content with unimplemented measures for the abatement and
prevention of pollution. They may be compelled to take positive measures to
improve the environment.

Rural Litigation and Environment Kendra, Dehradun vs. State of Uttar

Pradesh

In this case, the representatives of the Rural Litigation and Entitlement Kendra,
Dehradun wrote to the Supreme Court alleging that illegal limestone mining in the
Mussorie-Dehradun region was causing damage to the fragile eco-systems in the
area. The Court treated this letter as a public interest petition under Article 32 of
the Constitution. And also several committees have been appointed for the full
inspection of illegal mining sites. All the committees came at the conclusion that
the limestone quarries whose adverse effects are very less, only those should be
allowed to operate but that too after further inspection and all. Therefore, the Court
ordered the closure of a number of limestone quarries. Although the Court did not
mention any violation of fundamental right explicitly it impliedly admitted the
adverse effects to the life of people and involved a violation of Article 21 of the
Constitution.

M.C. Mehta vs. Union of India (Vehicular Pollution Case)

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A matter regarding the vehicular pollution in Delhi city, it was held to be the duty
of the Government to see that the air did not become contaminated due to vehicular
pollution. The Apex court again confirming the right to a healthy environment as a
basic human right and stated that the right to clean air also stemmed from Art 21
which referred to Right to life. This case has served to be a major landmark
because of which lead-free petrol supply was introduced in Delhi. There was a
complete phasing out old commercial vehicles more than 5 years old as directed by
the courts.

T.N. Godavarman Thirumulpad v. Union of India

In this very recent case concerning conservation of forests, Justice Y.K. Sabharwal,
held that considering the compulsions of the States and the depletion of forest,
legislative measures have shifted the responsibility from States to the Centre.
Moreover, any threat to the ecology can lead to the violation of the right of
enjoyment of healthy life guaranteed under Art 21, which is required to be
protected. The Constitution enjoins upon this Court a duty to protect the
environment.

Murli S. Deora vs. Union of India

In the instant case, it was pointed out by the Court that: “Since article 21 of the
Constitution guarantees that none should be deprived of their life, then why should
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a non-smoker become the victim of the whole process? It was contended that
smoking is injurious to health and may affect the health of smokers but there is no
reason that health of passive smokers should also be injuriously affected. So, till
the statutory provision is made and implemented by the legislative enactment, it
was held that it would be in the interest of the citizens to prohibit smoking in
public places and the person not indulging in smoking cannot be compelled to
passive smoking on account of the acts of the smokers.”

Conclusion

Following a long course of active interpretation of constitutional and legislative

clauses by the judiciary and vigorous efforts of some green citizens, the Indian
environmental scenario has undergone a positive change. Today, the environmental
consciousness imported by the courts, mingled with subsequent legislative efforts
in the later years, introduced the Right to Environment as a fundamental right
under Article 21 of the constitution of India.

The Courts in India have played a distinguishing role in gradually enlarging the
scope of a qualitative living by engaging themselves in and resolving various
issues of environmental protection. Consequently, activities posing a major threat
to the environment were curtailed so as to protect the individual’s inherent right to
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a wholesome environment as guaranteed under various instruments for the

protection of legal and human rights.

C. Constitutional provisions: Ar 14, 16, 19(1) g, 48-A, and 51 (1) g

Environmental Laws and Constitutional Provisions in India

It is interesting to note that natural resources had been stored virtually untouched in
the Earth for millions of years. But since the start of the industrial revolution vast
amounts of these resources had been exploited within a period of just a couple of
hundreds of years at unimaginable rates, with all the waste from this exploitation
going straight in the environment (air, water, land) and seriously damaging its
natural processes. Although pollution had been known to exist for a very long time
(at least since people started using fire thousands of years ago), it had seen the
growth of truly global proportions only since the onset of the industrial revolution
during the 19th century.

Environmental degradation in India has been caused by a variety of social,

economic, institutional and technological factors. Rapidly growing population,
urbanization and industrial activities have all resulted in considerable deterioration
in the quality and sustainability of the environment. Environmental ethics have
also formed an inherent part of Indian religious precepts and philosophy.
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The importance of Judiciary in a democratic setup for protection of life and

personal rights can hardly be overestimated. India has a highly developed judicial
system with the Supreme Court having plenary powers to make any order for doing
complete justice in any cause or matter and a mandate in the Constitution, to all
authorities, Civil and Judicial, in the territory of India to act in aide of the Supreme
Court. The scope of Writ Jurisdiction of the High Courts is wiser than traditionally
understood and the judiciary is separate and independent of the executive to ensure
impartiality in administration of justice.

In considering the role of the judiciary in environmental governance, there are two
issues that need to be considered. The first is the role the judiciary in the
interpretation of environmental law and in law making and the second is the
capability of jurists to effectively interpret the increasingly cross-linked issues
brought to their attention.

Historical Overview:

The Environment Protection Act 1986 defines environment as

“environment includes water, air and land and the inter-relationship which exists
among and between water, air and land, and human beings, other living creatures,
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plants, micro organism and property.”

Besides the physical and biological aspect, the “environment” embraces the social,
economic, cultural, religious, and several other aspects as well. The environment,
thus, is an amalgamation of various factors surroundings an organism that interact
not only with the organism but also among themselves. It means the aggregation of
all the external conditions and influences affecting life and development of organs
of human beings, animals and plants.

Policy and Laws in Ancient India:

In the ancient India, protection and cleaning up of environment was the essence of
the Vedic culture. The conservation of the environment formed an ardent article of
faith, reflected in the daily lives of the people and also enshrined in myth folklore,
art, culture and religion. In Hindu theology forests, trees and wildlife protection
held a place of special reference.

Policy and Laws in British India

BY AROUND 1860, Britain had emerged as the world leader in deforestation,

devastation its own woods and the forest of Ireland, South Africa and north eastern
United States to draw timber for shipbuilding, iron-smelting and farming. In the
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early nineteenth century, the Raj carried out a fierce onslaught on the sub
continent’s forests. The revenue orientation of the colonial land policy also worked
towards the denunciation of forests.

The imperial forest department was formed in1864, with the help of experts from
Germany, the country which was at the time the leading European nation in forest
management. The first inspector-general of forests, Dietrich Brandish, had been a
botanist and recognize awesome task of checking the deforestation, forging legal
mechanism to assert and safeguard states control over the forests. it was his dual
sense that the railway constituted the crucial watershed with respect to the water
management in India- the need was felt to start an appropriate department, and for
its effective functioning legislation was required to curtail the previously
untouched access enjoyed by the rural communities

The Principles on environment

With a view to protecting and improving the environment, different legislations
have been made and different regulations, rules have been issued. The Government
of India, through its Ministry of Environment and Forests is administering has
enacted nationwide comprehensive laws.
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1972 Stockholm Declaration affirms that "Man has the fundamental right to
freedom, equality and adequate conditions of life, in an environment of quality that
permits a life of dignity and well-being, and he bears a solemn responsibility to
protect and improve the environment for present and future generations..." This
shows that it has been internationally recognized that man's fundamental rights
embraces the need to live in an uncontaminated environment but it also puts forth
man's obligation to protect the environment for posterity.

The Supreme Court has laid down that the "Precautionary principle" and the
"Polluter Pays Principle" are essential features of "sustainable development".
These concepts are part of Environment Law of the country.

The "Precautionary Principle" establishes that a lack of information does not

justify the absence of management measures. On the contrary, management
measures should be established in order to maintain the conservation of the
resources. The assumptions and methods used for the determination of the
scientific basis of the management should be presented.

The essential ingredients of the precautionary principle are:

(i) Environmental measures- by the state government and the statutory authorities-
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must anticipate, prevent and attack the causes of environment degradation.

(ii) When there are threats of serious and irreversible damage, lack of scientific
certainty should not be used as a reason for postponing measure to prevent
environmental degradation.

(iii) The “Onus of Proof” is on the actor or the developer/industrialist to show that
his action is environmentally benign.

(iv) Precautionary duties must not only be triggered by the suspicion of concrete
danger but also by concern or risk potential.

In M.C. Mehta v Union of India (CNG Vehicle Case) (AIR 2002 SC 1696)

The supreme court observed that any ‘auto-policy’ framed by the Government
must, therefore, of necessity conform to the constitutional principles well as
overriding statutory duties cast upon the government under the EPA. The auto
policy must adopt a ‘precautionary principles’ and make informed
recommendations which balance the needs of transportation with the need to
protect the environment.
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The “polluter pays” principle came about in the 1970's when the importance of the
environment and its protection was taken in world over. It was subsequently
promoted by the Organization for Economic Cooperation and development
(OECD). The ‘polluter pays' principle as interpreted by the Court means that the
absolute liability for harm to the environment extends not only to compensate the
victims of pollution but also the cost of restoring the environmental degradation.

In other words, Polluter should bear the cost of pollution as the polluter is
responsible for pollution’. The principle demands that financial costs of preventing
or remedying damage caused by pollution should lie with the undertakings which
cause pollution.

It may be noted that the polluter pays principle evolved out of the rule of ‘absolute
liability’ as laid down by the apex court in Sriram Gas Leak Case.

Sustainable Development

Sustainable Development means an integration of development and environment

imperative it means development in harmony with environmental consideration. To
be sustainable, development must possess both economic and ecological
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sustainability. It is a development process where exploitation of resources,

direction of investment, orientation of technology development and institutional
changes are all in harmony. Sustainable development also implies local control
over the resource use, and is the only path for conserving and promoting socio-
economic wellbeing in a democratic form.

'eco-development’ is a related concept. It is a process of ecologically sound

development, of positive management of environment for human benefits. For
example banning tree felling in reserve forests and permitting harvesting of minor
forest products by rural poor and tribal; development of community or common
lands for rural subsistence needs of industries, towns and villages. These are the
components of the “new development strategies”. The component of eco-
developmental so includes alternative development strategies; biogas, substitute for
natural resources, social forestry, micro irrigation and recycling of waste to prevent
pollution.

Vellore Citizens Case:

In a landmark judgment where the principle of sustainable development has been
adopted by the Supreme Court as a balancing concept, while rejecting the old
notion that development and environmental protection cannot go together, the apex
court held the view that sustainable development has now come to be accepted as
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“a viable concept to eradicate poverty and improve the quality of human life while
living within the carrying capacity of the supporting eco system.” Thus, pollution
created as a consequence of development must be commensurate with the carrying
capacity of our ecosystem.

FACTS - In this case, certain tanneries in the State of Tamil Nadu were discharging
untreated effluent into agricultural fields, roadsides, waterways as open lands. The
untreated effluent finally discharges in the river which has the main source of
water supply to the residence of Vellore. The Supreme Court issued comprehensive
directions for maintaining the standards stipulated by the Pollution Control Board.

Observations
The Constitutional and Legislative measures – The Constitution of India and
Environment.
To protect and improve the environment is a constitutional mandate. It is the
commitment for a country wedded to the ideas of a welfare State. The Indian
constitution contains specific provisions for environmental protection under the
chapters of Directive Principles of the State Policy and Fundamental Duties. The
absence of any specific provision in the Constitution recognizing the fundamental
right to (clean and wholesome) environment has been set off by judicial activism in
the recent times.
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2.2 Article 48A and 51 (A)(g)

A global adaption consciousness for the protection of the environment in the

seventies prompted the Indian Government to enact the 42nd Amendment (1976)
to the Constitution. The said amendment added Art. 48-A to the Directive
Principles of State Policy. It Declares:-

“the State shall endeavor to protect and improve the environment and to safeguard
the forests and wildlife of the country”.

A similar responsibility imposed upon on every citizen in the form of Fundamental

Duty –

2.3 Art. 51(A) (g)

“to protect and improve the natural environment including forest, lakes, rivers and
wildlife, and to have compassion for living creatures”.

The amendments also introduced certain changes in the Seventh Schedule of the
Constitution. ‘Forest’ and ‘Wildlife’ were transferred from the State list to the
Concurrent List. This shows the concern of Indian parliamentarian to give priority
to environment protection by bringing it out the national agenda. Although
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unenforceable by a court, the Directive Principles are increasingly being cited by

judges was a complementary to the fundamental rights. In several environmental
cases, the courts have guided by the language of Art. 48A. and interpret it as
imposing “an obligation” on the government, including courts, to protect the
environment.

In L.K Kollwal V State of Rajasthan, a simple writ petition by citizens of Jaipur

compelled the municipal authorities to provide adequate sanitation. The court
observes that when every citizen owes a constitutional duty to protect the
environment (Art.51A), the citizen must be also entitled to enlist the court’s aid in
enforcing that duty against recalcitrant State agencies. The Court gave the
administration six month to clean up the entire city, and dismissed the plea of lack
of funds and staff.

The Public Trust Doctrine, evolved in M.C. Mehta v. Kamal Nath, states that
certain common properties such as rivers, forests, seashores and the air were held
by Government in Trusteeship for the free and unimpeded use of the general
public. Granting lease to a motel located at the bank of the River Beas would
interfere with the natural flow of the water and that the State Government had
breached the public trust doctrine.
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A matter regarding the vehicular pollution in Delhi city, in the context of Art 47
and 48 of the Constitution came up for consideration in M.C. Mehta vs. Union of
India (Vehicular Pollution Case). It was held to be the duty of the Government to
see that the air did not become contaminated due to vehicular pollution. The Apex
court again confirming the right to healthy environment as a basic human right
stated that the right to clean air also stemmed from Art 21 which referred to right to
life. This case has served to be a major landmark because of which lead-free petrol
supply was introduced in Delhi. There was a complete phasing out old commercial
vehicles more than 5 years old as directed by the courts. Delhi owes its present
climatic conditions to the attempt made to maintain clean air.

The Ganga Water Pollution case: M C Mehta V. Union of India, AIR

1988, SC 1037

The owners of some tanneries near Kanpur were discharging their effluents from
their factories in Ganga without setting up primary treatment plants. The Supreme
Court held that the financial capacity of the tanneries should be considered as
irrelevant while requiring them to establish primary treatment plants. The Court
directed to stop the running of these tanneries and also not to let out trade effluents
from the tanneries either directly or indirectly into the river Ganga without
subjecting the trade effluents to a permanent process by setting up primary
treatment
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In the very recent case of T.N. Godavarman Thirumulpad v. Union of India, a case
concerning conservation of forests, Justice Y.K. Sabharwal, held: Considering the
compulsions of the States and the depletion of forest, legislative measures have
shifted the responsibility from States to the Centre. Moreover any threat to the
ecology can lead to violation of the right of enjoyment of healthy life guaranteed
under Art 21, which is required to be protected. The Constitution enjoins upon this
Court a duty to protect the environment.

2.4 Article 246

Art.246 of the Constitution divides the subject areas of legislation between the
Union and the States. The Union List (List I) includes defence, foreign affairs,
atomic energy, intestate transportation, shipping, air trafficking, oilfields, mines
and inter-state rivers. The State List (List II) includes public health and sanitation,
agriculture, water supplies, irrigation and drainage, fisheries. The Concurrent list
(List III) (under which both State and the Union can legislate) includes forests,
protection of wildlife, mines and minerals and development not covered in the
Union List, population control and factories. From an environmental standpoint,
the allocation of legislative authority is an important one – some environmental
problem such as sanitation and waste disposal, are best tackled at the local level;
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others, like water pollution and wildlife protection, are better regulated uniform
national laws.

2.5 Article 253

Art.253 of the Constitution empowers Parliament to make laws implementing

India’s international obligations as well as any decision made at an international
conference, association or other body. Art.253 states: Notwithstanding anything in
the foregoing provision provisions of this chapter, Parliament has power to make
any law for the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or any decision
made at any international conference, association or other body. The Tiwari
Committee in 1980 recommended that a new entry on “environmental Protection”
be introduced in the concurrent list to enable the centre to legislate on
environmental subjects, as there was no direst entry in the 7th seventh enables
Parliament to enact comprehensive environment laws. The recommendation,
however, did to consider parliament’s power under Art.253

2.6 Article 14 and Article 19 (1) (g)

ART. 14 states: “The states shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.’’ The right to equality
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may also be infringed by government decisions that have an impact on the

environment. An arbitrary action must necessary involve a negation of equality,
thus urban environmental groups often resort to Art.14 to quash arbitrary municipal
permission for construction that are contrary to development regulations.

2.7 Article 21

(Right to Wholesome Environment)

"No person shall be deprived of his life or personal liberty except according
procedure established by law."

In Maneka Gandhi v Union of India, the Supreme Court while elucidating on the
importance of the ‘right to life’ under Art. 21 held that the right to life is not
confined to mere animal existence, but extends to the right to live with the basic
human dignity (Bhagwati J.)

Similarly while interpreting Art.21 in Ganga Pollution Case as discussed before,

Justice Singh justified the closure of polluting tanneries observed: "we are
conscious that closure of tanneries may bring unemployment, loss of revenue, but
life. Health and ecology have greater importance to the people."
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Environmental Laws In India

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT 1974

The Act prohibits discharge of pollutants into water bodies beyond a given
standard and lays down penalties for non-compliance with its provisions.

It set up the Central Pollution Control Board (CPCB) which lays down standard for
the prevention and control of water pollution. At the state level, the State Pollution
Control Board (SPCB) functions under the direction of CPCB.

The functions of CPCB have been laid down in section 16 whereas the functions of
SPCB has been laid down in section 17.

The sampling of effluents for test has been laid down in section 21.

In Delhi Bottling Co. Pvt. Ltd. V. CPCB, AIR 1986 Del 152, it was found that the
representatives of board got the samples analysed from a non-recognized
laboratory by the state. The court held that since section 21 was not complied upon,
the test results were inadmissible as evidence.
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D. Environment Protection through Public Interest Litigation

Writs And PILs For Safeguarding The Environment

A writ petition can be filed to the Supreme Court under Art.32 and the High Court
under Art.226, in the case of a violation of a fundamental right. Since the right to a
wholesome environment has been recognized as an implied fundamental rights, the
writ petitions are often resorted to in environment cases. Generally, the writs of
Mandamus, Certiorari and Prohibition are used in environmental matters. For
instance, a Mandamus (a writ to command action by a public authority when an
authority id vested with power and wrongfully refuses to exercise it ) would lie
against a municipality that fails to construct sewers and drains, clean street and
clear garbage (Rampal v State of Rajasthan) likewise, a state pollution control
board may be compelled to take action against an industry discharging pollutants
beyond the permissible level.

The writs of certiorari and prohibition are issued when an authority acts in excess
of jurisdiction, acts in violation of the rules of natural justice, acts under a law
which is unconstitutional, commits an error apparent on the face of the record, etc.
For instance, a writ of certiorari will lie against a municipal authority that consider
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a builder’s applications and permits construction contrary to development riles e.g.

wrongfully sanctions an office building in an area reserve for a garden. Similarly,
against water pollution control board that wrongly permits an industry to discharge
effluents beyond prescribe levels.

A writ of Certiorari will lie against a municipal authority that permits construction
contrary to development rules or acts in excess of jurisdiction or in violation of
rules of natural justice for instance wrongly sanctioning an office building in an
area reserved for garden.

When a fundamental right, which includes right to wholesome environment is

violated Art. 32 and 226 provide appropriate remedy.

In E.Sampath Kumar v. Government of Tamil Nadu, 1998, AIHC 4498

The party an individual was troubled by the excessive noise pollution and
vibrations caused by electrical motors, diesel engines, and generator used by a
Hotel. The high court held that an affected person can maintain a writ petition
while rejecting the hotel owner’s plea that a civil suit would be proper remedy.

Public interest litigation describes legal actions brought to protect or enforce rights
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enjoyed by members of the public or large parts of it.

In a public interest case, the subject matter of litigation is typically a grievances

against the violation of basic human rights of the poor and helpless or about or
about the content or conduct of government policy this litigation is not strictly
adversarial (in a adversarial procedure, each party produces his own evidence
tested by cross-examination by other side) and in it a judge play a large role in
organizing and shaping the litigation and in supervising the implementation of
relief.

Since the 1980s public interest litigation (PIL) has altered both the litigation
landscape and the role of the higher judiciary in India. Supreme Court and High
Court judges were asked to deal with public grievances over flagrant human rights
violations by the state or to vindicate the public policies embodied in statutes or
constitutional provisions. This new type of judicial business is collectively called
public interest litigation.

In Ramdas Shenoy v The Chief Officer, Town Municipal Council , Udipi a rate
tax payer’s right to challenge an illegal sanction to convert a building into a cinema
was upheld by Supreme Court.
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In Mahesh R Desai V. Union of India, a journalist complained to the Supreme

Court that the national coastline was being sullied by unplanned development that
violated a Central Government directive. The Supreme Court registered the letter
as a petition, requested the court’s legal aid committee to appoint a lawyer for the
petition and issued notice to the Union Government and the government of the all
States.

Taj Mahal Case:

In Taj Mahal's case (M C Mehta V. Union of India, AIR 1997, SC 734), the
Supreme Court issued directions that coal and coke based industries in Taj
Trapezium (TTZ) which were damaging Taj should either change over to natural
gas or to be relocated outside TTZ. Again the Supreme Court directed to protect
the plants planted around Taj by the Forest Department as under:

The Divisional Forest Officer, Agra is directed to take immediate steps for seeing
that water is supplied to the plants... The Union Government is directed to release
the funds immediately without waiting for receipt of the proposal from the U.P.
Government on the basis of the copy of the report. Funding may be subsequently
settled with the U.P. Government, but in any set of circumstances for want of funds
the officer is directed to see that plants do not wither away.
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The Court held that 292 industries located and operating in Agra must changeover
within fixed time schedule to natural gas as industrial fuel or stop functioning with
coke /coal and get relocated. The industries not applying for gas or relocated are to
stop functioning with coke/coal from 30-04-97. The Shifting industries shall be
given incentives in terms of the provisions of Agra Master Plan and also the
incentive normally extended to the new industrial units.

The integration of the international principles of environmental law into the Indian
legal framework is an important consequence of the emergence of Public Interest
Litigation in the realm of environmental law. (Razzaque, 2004) In fact, the
application and re-interpretation of international legal principles in the Indian
context reflect a greater concern with making hazardous industrial enterprises
responsible towards environmental concerns. In M C Mehta v Union of India the
Supreme Court extends the principle of strict liability drawing from the Rylands v
Fletchers case in English law to formulate a principle of absolute liability whereby
an enterprise carrying out a hazardous activity is “absolutely liable” to compensate
for any harm arising from such activity. The principle of strict liability in English
common law states that “a person will be strict liable when he brings or
accumulates on his land something likely to cause harm if it escapes, and damage
arises as a natural consequence of its escape.”(Razzaque, 2004: 210) However, in
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formulating a principle of absolute liability, the Court contends that such liability is
not subject to any of the exceptions“ under the rule in Rylands v Fletcher.”

The Bhopal Gas Leak Case

The Bhopal disaster raised complex legal questions about the liability of parent
companies for the acts of their subsidiaries, the responsibilities of multinational
corporations engaged in hazardous activities, the transfer of hazardous
technologies and the applicable principles of liability. Bhopal was inspirational
factor for the judicial innovation in the area of evolving principles of corporate
liability for use of hazardous technology.

On December 3, 1984,highly toxic methyl isocyanides (MIC), which had been

manufactured and stored in Union Carbide’s chemical plant in Bhopal, escaped
into the atmosphere and killed over 3,500 people and seriously injured about 2 lakh
people.

The Bhopal gas leak disaster (Processing of Claims) Act, 1985 was passed by
parliament to ensure that the claims arising out of the Bhopal disaster were dealt
with speedily, effectively, equitably and to the best advantage of the claimants.

High Court Judgment:

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Justice Seth used English Rules of procedure to create an entitlement to interim

compensation (i.e. it is permissible for courts to grant relief of interim payment
under the substantive law of torts). Under the English rules, interim relief granted
in personal injury cases if a prima facie case is made out. He said that “more than
prima facie case have been made out” against the Carbide.

He observed that the principle of absolute liability without exceptions laid down in
M.C. Mehta case applied more vigorously to the Bhopal suit. He holds that
Carbide is financially a viable corporation with $ 6.5 billion unencumbered asset
and $200millions encumbered assets plus an insurance which could cover up to
$250millions worth of damages. Given carbide’s resources, it is eminently just that
it meet a part of its liability by interim compensation (Rs.250cr.)

In Union Carbide Corporation v Union of India (AIR 1990 SC 273), the

Supreme Court secured a compromise between the UCC and Government of India.
Under the settlement, UCC agreed to pay US $470 million in full and final
settlement of all past, present and future claims arising from the Bhopal disaster. In
addition to facilitate the settlement, the Supreme Court exercised its extraordinary
jurisdiction and terminated all the civil, criminal and contempt of court
proceedings that had arisen out of the Bhopal disaster. It was declared by the court
that if the settlement fund is exhausted, the Union of India should make good the
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deficiency.

Review petition under Art.137 and writ petitions under Art.32 of the Constitution
of India were filed questioning the constitutional and under the Bhopal Act
(providing for the registration and processing of claims) and the resultant
categorization of the victims was also upheld. It was laid down that there is no
need to tie down the tortfeasor to future liability [UCC v UOI AIR 1992 SC 248].

Criminal Liability of Carbide Officials:

In UCC v UOI (AIR 1992 SC 248), the supreme court reinstate criminal charges
for homicide not amounting to murder’ (Sec. 304,Part II, IPC) against top
executives at Union Carbide( viz. nine UCIL employees and three foreign accused,
including Warren Anderson, the CEO) while uploading the rest of the settlement.
The CBI in December 1993 finally prepared the documents necessary to extradite
Warren Anderson.

Conclusion:
The powers vested to the Pollution Control Boards are not enough to prevent
pollution. The Boards do not have power to punish the violators but can launch
prosecution against them in the Courts which ultimately defeat the purpose and
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object of the Environmental Laws due to long delays in deciding the cases. Thus, it
is imperatively necessary to give more powers to the Boards.

What we need is social awareness from below, not laws from the above. No law
works out smoothly unless the interaction is voluntary. In order to educate people
about the environmental issues, there should be exhibition of slides in the regional
languages at cinema houses and television free of cost. Further, as directed by the
Supreme Court of India in M C Mehta Case (M C Mehta V Union of India 1992,
SC 382) school and college levels in graded system so that there should be general
growth of awareness.

Unit 2- Environmental laws: India and international

1. Law of Torts

Ans- Nuisance It means anything which annoys, hurts or that which is offensive.
Under the common law principle the nuisance is concerned with unlawful
interference with the person’s right over wholesomeness of land or of some right
over or in connection with it. But for an interference to be an ‘actionable nuisance’
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the conduct of the defendant must be unreasonable. Nuisance may be public or

private in nature. Hence acts interfering with the comfort, health or safety are
covered under nuisance. The interference may be due to smell, noise, fumes, gas,
heat, smoke, germs, vibrations etc. In the private nuisance the basis of an action
under nuisance is unreasonable and unnecessary inconvenience caused by the use
of defendant’s land.17 A public nuisance is an unreasonable interference with a
right common to general public, otherwise an act or omission which materially
affects the reasonable comfort, convenience, health, safety and quality of life of a
class of persons. The activities include carrying of trades causing offensive smells,
intolerable noises, dust, vibrations, and collection of filth that affects the health or
habitability in a locality. Reasonableness of the defendants’ conduct is usually the
pivotal question in nuisance. In determining reasonableness, the Courts are
generally guided by ordinary standard of comfort prevailing in the neighborhood.
8.5.2.1 Remedies for public nuisance under common law The Code of Criminal
Procedure contain provisions to tackle the problems of public nuisance. The
remedies available under Cr.PC are “ An executive magistrate can interfere and
remove a public 1 ft nuisance of an environmental nature. 113 £ The magistrate can
adopt immediate measures to prevent danger or injury of a serious kind to the
public.19 For the prevention of danger to human life health or safety the
magistrate can direct a person to abstain from acts.20 The scope of this provision
as an instrument of pollution control was used in early cases like Deshi Sugar Mill
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vs. Tupsi Kahar.21 A criminal prosecution can be initiated for the offence of
causing public nuisance under Indian Penal Code.22 The Advocate General or two
or more persons can institute a suit, whether or not special damage is caused to
such persons. A suit may be filed in case of public nuisance or other wrongful acts
affecting or likely to affect the public. The remedy may be a declaration or
injunction. Limitations of the remedy. The tort law of nuisance as a remedy with
reference to environmental damage suffers from several limitations. First
reasonableness of defendant’s conduct is a question mark or otherwise
unreasonableness on the defendant’s conduct is very difficult to prove and mostly
weighed against the gravity of the harm to the plaintiff. No ideal or absolute
standard can be expected from the defendant such as that of‘reasonable man’.
Standard of nuisance varies from place to place. Lack of ‘standing’ to sue another
factor. "Special injury" is to be proved for successful action in private actions on
public nuisance by the plaintiff. In pollution related cases it is very difficult for the
plaintiff to establish casual link between the pollutant and the injury as the subject
required more of technical evidences. Again material harm attributable to the
unreasonable conduct of the defendant is very difficult to prove especially in the
pollution related cases.

Public nuisance under Section 133 of the Criminal Procedure Code, 1973. The
scope of the provision as an instrument of pollution control came under scrutiny in
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several cases. In Deshi Sugar Mill vs. Tupsi Kaharthe Patna High Court held that
the law of nuisance under Section 133 Cr. P.C. would be applicable to pollution
related cases also. The Court also recognized that the magistrate has the power to
proceed against the discharge of effluents injurious to the health of the community.
In Raghunandan vs. Emperor27 the Allahabad High Court upheld the magistrate’s
order forbidding the factory owner from operating his factory engines from 9 pm to
5 am on the ground that the noise emanated from the factory is ‘injurious to the
physical comfort of the community. The Court held nuisance of such a nature
would undoubtedly be injurious to the physical comfort and those living in the
neighborhood of the factory and the matter attracts action under Section.133 of Cr.
P.C. In Shaukat Hussain vs. Sheodaya the Madhya Pradesh High Court limited the
application of the provision of Section 133 Cr. P. C. only to actual nuisance and
held that it should not be used in the case pollution and dismissed the special leave
petition, relied on the findings of the magistrate believing him to have made a local
inspection of the site. The Supreme Court captured the potentiality of the law of
nuisance in the Criminal Procedure Code. In Municipal Council, Ratlam vs.
Vardhichand and others30 the Supreme Court identified the responsibilities of the
municipal council towards environmental protection and developed the law of
public nuisance in the Code of Criminal Procedure as a potent instrument for the
enforcement of their duties. When the case came before the Supreme Court Justice
V.R.Krishna Iyer made a thorough examination of the two main issues. the
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municipal legislation which casts a duty on the municipality to maintain clean

roads and clean drains, and the provisions of the Section 188 of the Indian Penal
Code (1860), which prescribes punishment to a person contravening the directions
of the magistrate. According to Justice Iyer, the imperative tone of these provisions
demands a mandatory duty. When an order is given under Section 133 of the
Cr.P.C., the municipality cannot take the plea that notwithstanding the public
nuisance, its financial inability validly exonerated it from statutory liability.
Further, the Court held that the processes that are envisaged under Section 133 of
the Cr.P.C. have a social justice component. The remedies available, and the
powers exercisable, under the provision are conducive to the demands of the rule
of law necessitated by the conditions of developing countries. In Krishna Gopal vs.
State of Madhya Pradesh the Madhya Pradesh High Court has gone one step
forward and ordered the closure of the factory even though the contention of the
defendant was that the inconvenience to the inmates of a house is not of public
nuisance but only private in nature. The High Court Observed : "It is not the intent
of the law that the community as a whole or large number of complainants should
come forward to lodge their complaint or protest against the nuisance : that does
not require any particular number of complainants. A mere reading of Section 133
(1) of Cr.P.C. would go to show that the jurisdiction of sub-divisional magistrate
can be invoked on receiving a report of a police officer or other information and on
taking such evidence if any, as he thinks fit. These words are important. Even on
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information received the sub-divisional magistrate is empowered to take action in

his behalf for either removal or regularizing a public QA nuisance". The Court
further said that smoke and noise emanated from the glucose manufacturing
factory is injurious to health and physical comfort of the community, and dismissed
the revision petition filed by the defendant. In Madhavi vs. Thilakan the Kerala
High Court upheld the order of the magistrate under Section 133 Criminal
Procedure Code against the nuisance created by the automobile workshop in a
residential area. In Ajeet Mehta vs. State of Rajasthan the Section 133 Cr. P. C. was
very much recognized by the Rajasthan High Court and the court upheld the orders
ofthe magistrate in the removal of loading, unloading and stocking of fodder
business near a residential locality causing serious health hazard. 117 In Pranab
Kumar Chakraborty vs. Mohamed Akram Hussain the Gauhati High Court decided
that with the help of an order under Section 133 Cr. P. C. a landlord could not evict
a tenant. The Court further said that magistrate must satisfy himself in an objective
manner in finding out whether there is nuisance or likelihood of nuisance. In
Jayakrishna Panigrahi vs. Hrisikesh Panda the Division Bench of the Rajasthan
High Court set a differing view on ‘public nuisance’ under Section 133 Cr. P. C.
The Court held that despite the heading ‘public nuisance’ in the section the literal
and unambiguous meaning shall be given to the expression ‘nuisance’ and that the
provision shall apply to a case where the interest of a single individual or of a few
individuals are affected. Negligence is another specific tort on which a common
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law action to prevent environmental pollution can be instituted. When there is a

duty to take care and the same is not taken, which results in some harm to another
person, it is amounted to negligence. In the action of negligence the result is some
kind of a loss, inconvenience or annoyance to another. The plaintiff must show the
defendant was under a duty to take reasonable care to avoid the damage
complained breach of the duty consequential damage which must have been
factually caused by breach of duty and must be reasonably foreseeable as a
consequence of the breach. The problem with cases of negligence is, the difficulty
in establishing casual connection between the negligent act of one and injury to
other. It is also very difficult and problematic to prove if the effect of the injury
remains latent for a long period. 118 8.5.4 Trespass It means an intentional
invasion of the interests o of the plaintiff over property in his exclusive possession.
Invasion may be direct or through some tangible object. Two things are necessary
to prove for constituting the tort of trespass. intentional interference such
interference must be direct rather than consequential. It differs from nuisance in
that, trespass is actionable per se whereas nuisance is actionable in the proof of
damage. In the environment related problems tort of trespass constitute a deliberate
placement of waste in such circumstances as it will be carried to the land of
plaintiff by natural forces. It may be gases or even invisible fumes. In environment
related cases the tort of trespass is very rarely invoked due to the fact. difficult to
identify the source high cost of litigation unwillingness on the part of the people to
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resort to such remedy all this make it less popular amongst the people Strict
Liability The rule of strict liability as enunciated in Rylands vs. Fletcher is another
form of private law action in respect of environmental hazards. The rule provides
that: 119 "... the person who, for his own purposes, brings on his land and collects
and keeps there anything likely to do mischief if it escapes, must keep it in at his
peril and If the does not do so, is prima facie answerable for all the damage which
is the natural consequence of its escape". The rule as enunciated by Justice
Blackburn has few components which must be fulfilled so as to attract its
application. Upon the presence of these components only the defendant is prima
facie liable for the damage caused. The principle is that when a person brings on
his premises something that is likely to cause harm if it escapes, possesses it at his
peril, he will be strictly liable for the damage caused as a result of the escape of the
substance. There is no need either to establish any negligent conduct or malicious
intention to make one liable. Liability is strict and independent of motive. All that
one need to establish is that a person had brought dangerous thing on his premises
for non natural use of land by him (ie. not an ordinary use) and it escaped to the
area outside the occupation and injured others. It imposes ‘no fault’ liability as
attachment of liability exists irrespective of the fact that one had taken abundant
care and caution and still the object escaped from his control and caused damage to
others. As the liability is strict the defendant can raise only a few defenses such as
an act of God, act of default of the plaintiff, consent of the plaintiff, independent
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act of a third party and statutory authorization for the tort. The rule of strict liability
has been applied to a variety of circumstances where in damage has resulted either
due to fire, gas, explosions, electricity, noxious fumes, colliery spoil, vibration etc.
In India the rule of strict liability has been applied in limited situations relating to
the escape of water causing damage to landed property and chattels, fire etc. In the
modern industrial society with highly developed scientific and technological
knowledge, where hazardous and 120 inherently dangerous industrial activities are
necessary due to their social utility, the Supreme Court found it necessary to lay
down the old rule of strict liability and evolved a new principle of Absolute
Liability. The new principle of Absolute Liability affords no exceptions available
under Rylands vs. Fletcher. For their liability remedies available under the common
law remedies against the environmental pollution are available under the law of
torts. A plaintiff in the tort action may sue for damages or seek an injunction or
both Damages. Substantive damages are the reliefs given to the affected party of a
tort in terms of money for the loss suffered, injury sustained and inconvenience
borne. Exemplary damages are another category of damages, awarded as
punishment and by way of warning to a wrong doer. A third category of damages
"nominal damages’ indicating that the monetary compensation made available is
only very meager and nothing more than a symbolic or token of punishment to the
wrong doer. Even though damages are the principle relief in any tort action, it
suffers from inherent weakness. In our country most of the time the damages
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awarded have less money value, depreciation in the value of damages awarded at
the end of obligation due to high rate of inflation, prolonged litigation - all this
make the relief a little successful to plaintiff. Secondly the relief does not deterrent
the polluter. Thirdly it is not an effective remedy for the abatement of pollution.
Injunction This is an order of the Court restraining the commission, repetition or
continuation of a wrongful act of the defendant. The remedy is awarded 121 at the
discretion of the Court. It is of two kinds, temporary and perpetual. The Court will
consider the relative economic consequences which will result to the parties from
grant or denial of an injunction, the good faith or intentional misconduct of the
parties and the public interest. Compare to damages the injunctive reliefs are more
effective in abating pollution Common Law Remedy - Not so popular In India
common law remedy is used in very few cases for the purpose of protecting the
environment. The remedy is not so popular because like any other civil action,
litigation is very expensive and lengthy affair. Secondly very few people perceive
that environmental issues may be brought to Court under the law of torts. Thirdly
the burden of proof- as the subject of environmental pollution is of highly technical
in nature a common man may not be in a position to understand the technical
aspects of the same and this puts him in a psychologically disadvantageous
position.
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STATUTORY REMEDIES In addition to the above remedies Parliament has

provided special channels to redress in certain special types of environmental
cases. The Public Liability Insurance Act of 1991 and the National Environment
Tribunal Act of 1995 provides a summary remedy to the victims of the hazardous
industrial accident. Both the laws adopt a ‘no fault’ liability standard, all but
abolishing the defenses available to the owner of the hazardous facility and create
speedy claims-disposal machinery. Under the Public Liability Insurance Act,
claims up to Rs.25,000/- may be filed before the district collector, with the
jurisdiction for awarding larger amounts vesting in the National Tribunal
constituted under the Environmental Tribunal Act, 1995. 122 Until the enactment
of the Environment (Protection) Act of 1986, the power to prosecute belonged
exclusively to the Government under the existing laws. Citizens had no direct
statutory remedy against a polluter. But after the enactment of Environment
(Protection) Act, 1986 under Section 19 of the E.P. Act a citizen may prosecute an
offender by a complaint to a magistrate of course prior to complaining he must
give the government 60 days notice of his or her intention to complain. Similar
provisions are available allowing citizens’ participation in the enforcement of
pollution laws, in the Section 43 of the Air Act 1981 and in Section 49 of the Water
Act as amended in the year 1988. Again the amended sections require pollution
control boards to disclose relevant internal reports to a citizen seeking to prosecute
a polluter. The case of the writ procedure and the willingness of judges to
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adjudicate complex environmental issues on the basis of affidavit-evidence in P.I.L

has led to the neglect of the private prosecution machinery. More over private
prosecutions entail adherence to strict rules of evidence. Under the existing
pollution control laws those seeking to launch a private prosecution are
discouraged by the sampling requirements which confer the power to draw the
effluent samples exclusively on government officials. Supplementing the redressal
machinery in the National Environment Appellate Authority Act 1997 which
creates an appellate forum to test the validity of environmental clearances for
industrial projects granted under the Environment (Protection) Act, 1986. A citizen
can make a criminal complaint under Section 19 of the Environment (Protection)
Act, 1986 or the corresponding provisions under the Water Act and the Air Act.

2. Law of crimes.

Indian Penal Code, 1860

Introduction Environmental crime refers to the violation of laws intended to protect
the environment and human health. These laws govern air and water quality and
dictate the ways in which the disposal of waste and hazardous materials can legally
take place. Individuals or corporations can be found guilty of environmental
crimes.
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Public Nuisance under the Indian Penal Code focuses on the operation of the law
of nuisance through specific statutory provisions in the Civil and Criminal Codes
of India. The Indian penal Code of 1860 contains elaborate provisions defining the
crime of public nuisance in its various aspects and instances and prescribes
punishments. Chapter XIV of the Indian Penal Code deals with offences affecting
public health, safety, convenience, decency and morals. While Section 268 defines
Public Nuisance, there are two specific sections dealing with the fouling of water
(Section 277) and making the atmosphere noxious to health (section 278) which
could be used against perpetrators of water and air pollution.
Section 425: whoever with intent to cause, or knowing that he is likely to cause,
wrongful loss or damage to the public or to any person, causes the destruction of
any property, or any such change in any property or in the situation thereof as
destroys or demises its value or utility or affects injuriously, commits “mischief.

3. Emergence of environmental Legislations.

Ans- Evolution of Environmental Legislation in India The Indian Forest Act,
1927 consolidates the law relating to forests, the transit of forest-produce and
the duty leviable on timber and other forest products. The Prevention of Cruelty
to Animals Act was enacted in 1960 to prevent the infliction of unnecessary
suffering on the animals and to amend the laws relating to the prevention of
cruelty to animals. As a promotion for enactment of this act there was formation
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of animal board of India. In 1966 Indian Forest Service was constituted under
the All India Services Act, 1951 by the government of India. The main aim of
their service is to implement the country’s National Forest Policy which
envisages scientific management of forest and to exploit them on a sustained
basis primarily for timber products. Wild life Act enacted in the year 1972 with
the objective of effectively protecting the wild life of the country and to control
Environment Management 96 poaching, smuggling and illegal trade in wildlife
and its derivatives. This act was amended in January 2003. To strengthen the
act; the Ministry has proposed further amendments in the law by introducing
more rigid measures. Main objective is to provide protection to the flora and
fauna and also to ecologically important protected areas. Water Act was enacted
in 1974 to provide for the prevention and control of water pollution and for
water maintenance in the country. The Water cess Act was enacted in 1977, to
provide for the levy and collection of a cess on water consumed by persons
operating and carrying on certain types of industrial activities. The act was last
amended in 2003 Forest Conservation Act was enacted in 1980 to protect and
conserve country’s forest. Air Act (1981) and was amended in 1987 to provide
for prevention control and abatement of air pollution in India. Well know
Environment protection Act (1986) came into existence after 14 years of UN
conference with an objective of protection and improvement of the country.
Later on the amendments were done to it in 1991. The Man and Biosphere
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(MAB) programme of UNESCO was launched in 1971; India joined it in 1988

after formation of bioreserve committee. Purpose of this is to develop a base for
rational use or conservation of natural resources while improving the
relationship between the man and environment. In India the coast line is very
lengthy which runs to 7860 km. The coastal line consists of Malvan
(Maharashtra), Okha (Gujarat), Mandapam (Tamil Nadu), Gangetic Sundarbans
(West Bengal) as well as Lakshadweep and Andaman group of islands which
are rich with regard to the marine flora and fauna. When we are blessed with the
natural resources, it is our duty to safeguard it and pass it on to our posterity.
India has now established 15 bio reserves the first one Nokrek (Meghalaya) in
1988. Unit 2: Policy and Legal Aspects of EM 97 In Hazardous waste rules
(1989) were framed in which hazardous chemicals list was finalized. The Eco-
Mark Scheme of India was introduced in 1991 to increase the environmental
awareness amongst citizens. This scheme aimed at encouraging the public to
purchase products which are eco friendly. Public liability insurance act was
enacted in 1991 to provide for damages to victims of an accident which occurs
as a result of handling hazardous substances (owners associated with the
production or handling). National Environment Tribunal (1995) is for strict
liability for damage arising out of accidents caused from handling of hazardous
waste. Biomedical Waste Rules (1998) that deal with collection, reception,
storage, treatment and disposal of the waste. The Noise Pollution Rules (2000)
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the state government categorised industrial, commercial and residential or

silence zones to implement noise standards. The Biodiversity Act (2002) was
born out of India’s attempt to realize the objectives mentioned in the United
Nations convention on biological Diversity (CBD) enacted in 1992 states that
country should use their own biological resources. The Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006,
recognizes the rights of forest-dwelling Scheduled Tribes and other traditional
forest dwellers over the forest areas inhabited by them. This act also provides
framework for their rights. The National Environment Appellate Authority
(NEAA) was set up by the ministry of environment and forests to address cases
in which environment clearances are required in certain restricted areas. It was
established by the National Environment Appellate Authority Act 1997 to hear
appeals with respect to restriction of areas in which any industries, operations or
processes, operations or processes shall or shall not be carried Environment
Management 98 out, subject to certain safeguards under the Environment
(Protection) Act, 1986. The Authority shall become defunct and the Act shall
stand repealed upon the enactment of the National Green Tribunal Bill 2009
currently pending in Parliament.

UNIT- 2 Prevention and control of Water, Air and Noise and Land Pollution.
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1. The Water (Prevention and Control of Pollution) Act, 1974

Water (Prevention & Control of Pollution) Act, 1974 is a comprehensive legislation
that regulates agencies responsible for checking on water pollution and ambit of
pollution control boards both at the centre and states. The Water (Prevention &
Control of Pollution) Act, 1974 was adopted by the Indian parliament with the aim
of prevention and control of Water Pollution in India. Some of the important
sections regulating the prevention of water pollution as per the act are as discussed
below.

Functions of the State Board

Section 17 of the Water (Prevention & Control of Pollution) Act, 1974 clearly lists
all functions of the respective state boards for countering water pollution. The state
board of respective states is empowered to plan a comprehensive program for the
prevention, control or abatement of pollution of streams and wells, collect and
disseminate information relating to water pollution and encourage, conduct and
participate in investigations and research relating to problems of water pollution
and prevention.

The state water boards also have the right to inspect sewage or trade effluents,
works and plants for the treatment of sewage and trade effluents and to review all
water purification plants. The Board may establish or recognize a laboratory or
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laboratories to enable the Board to perform its functions under this section
efficiently, including the analysis of samples of water from any stream or well or of
samples of any sewage or trade effluents.

Consent of the State Board is necessary to discharge sewage

Section 25 of the Water (Prevention & Control of Pollution) Act, 1974 states that
Prior Consent of the State Board under section 25 is necessary to set up any
industry, plant or process which is likely to discharge sewage or trade effluent into
a stream or well or sewer or on land or bring into use any new or altered outlets for
the discharge of sewage or begin to make any new discharge of sewage. The
section further states that every State Board is liable to maintain a register
containing particulars or conditions imposed under the section related to any outlet,
or to any effluent, from any land or premises which must be open to inspection by
the state board.

Power to take emergency measures

Section 32 of the Water (Prevention & Control of Pollution) Act, 1974 describes
the power to take emergency measures in case of pollution of stream or well.
Under the act, State Board may issue orders to re move the matter, which is, or
may cause pollution; or remedy or mitigate the pollution, or issue prohibition
orders to the concerned persons from discharging any poisonous or noxious or
polluting matter.
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Section 24 and 43 of the Water (Prevention & Control of Pollution) Act, 1974
relate to prohibition on use of stream or well for disposal of polluting matter and
penalty for contravention thereof Under the scope of the provision, no person shall
knowingly cause or permit any poisonous, noxious or polluting mater as
determined by the State Board to enter into any stream or sewer or on land.
Anyone failing to abide by the laws of under is liable for imprisonment under
Section 24 & Section 43 ranging from not less than one year and six months to six
years along with monetary fines. The section further states that No person shall
knowingly cause or permit to enter any other matter which may impede the flow of
water of the stream causing pollution of any kind.

Penalties and fines

Section 42 of the of the Water (Prevention & Control of Pollution) Act, 1974 states
penalties and fines for certain acts including pulling down pillars, Obstructs any
person acting under the orders or direction of the Board, Damages any works or
property belonging to the Board and Failure to furnish any officer other employee
of the Board any information required. The fine and penalty includes Imprisonment
for a term which may extend up to three months or with fine to Rs. 10,000/- or
both.
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Understanding Water Class

Depending on the pollution of the water, water is demarked under various water
classes in accordance with the Water (Prevention & Control of Pollution) Act,
1974. Drinking water at source found without conventional treatment but after
disinfection is designated as Class A while water designated for outdoor bathing
comes under Class B. Any drinking water source which has been conventionally
treated comes under Class C while water used for propagation of wildlife and
fisheries is demarked as Class D. Water under Class E is used for irrigation and
industrial cooling along with waste disposal.

Some Key Points of Water Act 1974

 Water Act 1974 aims to prevent and control water pollution.

 Under Water Act, 1974, pollution control boards were created, who are
responsible for implementation of its provisions.
 One of the important provisions of the Water Act, 1974 is to maintain and
restore the ‘wholesomeness’ of our aquatic resources.
 Under Water Act 1974, Sewage or pollutants cannot be discharged into water
bodies including lakes and it is the duty of the state pollution control board to
intervene and stop such activity.
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 Anyone failing to abide by the laws of under is liable for imprisonment

under Section 24 & Section 43 ranging from not less than one year and six months
to six years along with monetary fines.
Central and state pollution control boards ; powers , constitution, powers and
functions.

(1) Constitution of Central Board:

According to Section-3, the Central Board shall consist of the following mem-
bers:

(a) A full time Chairman (to be nominated by the Central Government) having
knowledge or practical experience in matters related to environmental protection or
having knowledge and experience in administration of institutions dealing with
aforesaid matters.

(b) Not more than five officials nominated by the Central Government.

(c) Not more than five persons nominated by the Central Government from
amongst the members of State Boards.

(d) Not more than three non-officials nominated by the government to represent
interests of agriculture, fishery, agriculture-trade etc.
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(e) Two persons nominated by the government to represent the companies or

corporations owned by the Central Government.

(f) One full time Member-Secretary (to be appointed by the Central Govt.) having
knowledge and experience of scientific engineering or management aspects of
pollution control.

(2) Constitution of State Boards:

Under Section-4, of the State Pollution Control Board may be constituted having
the same constitution as the Central Board.

(3) Constitution of Committees:

A board may constitute as many committees as necessary. The members of a

committee shall be paid such fees and allowances for attending to any other work
of the Board.

(4) Constitution of Joint Boards:

According to Section-14 of the Act, under agreement between two or more con-
tiguous States, Joint Boards may be constituted for those states, by the Central or
State Governments.
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(5) Terms and Service Conditions of the Members of the Board:

(a) Terms and service conditions of the Member Secretary and Chairman shall be
as prescribed by the Government.

(b) Rest of the members shall hold office for a term of three years.

(c) A member shall be eligible for renomination.

(d) Central or State Government may remove a member of the Central or State
Board at any time by giving him reasonable notice and opportunity.

(e) The Chairman may resign by addressing his resignation to the government and
a member may resign by addressing his resignation to the Chairman.

(f) In the case of insolvency, unsound mind, conviction for the offence under this
Act, conviction for the offence involving moral turpitude, inability to attend three
consecutive meetings, abusing position as member of the Board, Partnership with
anybody dealing with sewage or trade effluent etc., are some conditions for
disqualification of the member. Seat of the disqualified member shall fall vacant
and a person nominated to fill such a vacancy shall hold office for the remaining
term.
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(6) Meetings of the Boards:

According to Section-8, at least one meeting must be held in every three months.

(7) Functions of the Central Board:

According to Section 16-A, the following are the functions of the Central
Board:

(a) To promote cleanliness of streams and wells in different areas of the state.

(b) To advise the Central Govt, on matters concerning the prevention and control of
water pollution.

(c) To co-ordinate the actions of the State Board and resolve disputes among them.

(d) To provide technical assistance and guidance to the State Boards to carry out
research in prevention and control of water pollution problems.

(e) To organise training of persons engaged in pollution control.

(f) To organise comprehensive programme for pollution control through mass

media.

(g) To lay down standards for streams or wells.

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(h) To prepare manuals, codes or guides for treatment and disposal of sewage and
trade effluents.

(i) To establish or recognise laboratories for analysis of water samples from any
stream, well or trade effluents.

(8) Functions of the State Boards:

Under Section 7-B, the following are the functions of a State Board:

(a) Planning a comprehensive programme for prevention, control and abatement of

pollution of streams and wells.

(b) Advising the State Government regarding water pollution control or location of
industries.

(c) Conducting and encouraging investigations and research relating to different

aspects of water pollution.

(d) To collaborate with the Central Board for training personnel for handling water
pollution programmes and organizing related mass education programmes.

(e) Inspecting trade effluents and waste water treatment plants.

(f) Prescribing effluent standards for the sewage and trade effluents.
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(g) Evolving economical and reliable methods of disposal, treatment and reuse of
waste water (in agriculture).

(h) Laying down the standards of treatment of sewage and trade effluents to be
discharged into any stream.

(i) Making, varying or revoking any order for preservation or control of discharge
of waste into streams and wells or construction of systems for disposal of effluents.

(j) Establishing or recognizing laboratories for analysis of samples.

(k) Performing such functions as may be entrusted by Central Board or State

governments.

(9) Directions:

The Central Board shall be bound by directions given by the Central Govt, whereas
the State Board shall be bound by directions given by the Central Board or the
State Government.

In case a grave emergency arises as a result of non-compliance of the State Govt,

as regards directions given by the Central Board, then the Central Govt, may
recover the expenses incurred by it from the persons concerned, as arrears of land
revenue.
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(10) Powers of the State Government:

(A) Power to Obtain Information:

According to Section 20.2, the State Board may make surveys, take measurements
or obtain information for purpose of performing functions under this Act. Failure to
comply with any directions under the Section is a punishable offence under
subsection (1) of Section 41.

(B) Power to Take Samples:

Under Section 21(1) A, the State Government has the power to take samples of
water of any stream or well or any effluent being discharged into such a stream or
well, for analysis. Under Section 22.4, the State Board further has the power to
obtain a report of the result of the analysis by a recognized laboratory.

(C) Power of Entry and Inspection:

According to Section 23.5, the State Board is empowered by the State Govt., with
the right to enter any place for the purpose of performing any of the functions
entrusted to it.

(D) Power of Prohibition on Disposal of Polluting Matter into a Stream or

Well:
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Under Section 24.6,

(a) No person shall knowingly allow entry of any poisonous, noxious or polluting
matter directly or indirectly into any stream, well or sewer or on land.

(b) No person shall knowingly allow entry of any matter into any stream, which
may impede the proper flow of water resulting in substantial aggravation of
pollution.

(a) No person shall establish any industry, operation or process or any treatment
disposal system, which is likely to discharge any sewage or effluent into stream or
well or on land.

(b) No person shall use any new outlet for discharge of sewage.

(c) No person shall begin to make any new discharge of sewage.

(11) Consent of State Board:

(a) Board must decide an application for consent within four months failing which
consent will be deemed to have been given.

(b) Persons already discharging any sewage or effluent into any stream or well or
on land will have to seek the consent of the State Board.
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A person may appeal against the order of the State Board within 30 days, to an
appellate authority established by the State Government. The State Govt, can alter
the decision of the State Board, if necessary.

(c) While giving consent, if any work is required to be executed and the applicant
fails to do so, the Board may itself execute it and recover the expenses along with
interest.

(d) The State Board must be informed in case due to an accident in any industry or
treatment or disposal system, any polluting matter is likely to be discharged into
any stream, well or on land which in turn may pollute water. The Board may take
remedial measures wherever necessary.

(e) The Board may approach a court for restraining a person who is likely to cause
pollution by disposal discharge of polluting matter into a stream, well or on land.

The person concerned may be directed by the court to remove the polluting matter
and in case of non-compliance, the court may authorize the board to do the needful
and the expenses incurred by the Board may be recovered from the person
concerned.
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The Board may order closure, prohibition or regulation of any industry or

operation. It may stop or regulate the supply of electricity, water or any other
service.

(12) Penalties for Violation of the Provisions of the Act:

(a) In case of failure to give information by a person discharging effluents into

stream or well or regarding construction or establishment of a disposal system the
penalty is imprisonment upto 3 months or fine up to Rs. 10,000/- or both.

If the omission continues, the penalty is an additional fine upto Rs. 5000/- per day.

(b) In case of destroying or damaging the property of the Board, obstructing the
performance of the Board’s functions, failure to furnish information about
accidents under section 31, giving wrong information or making false statements to
get Board’s consent, the penalty is, imprisonment up to 3 months or fine up to Rs.
10,000/- or both.

(c) In case of violation of order prohibiting discharge of any polluting matter into
stream, well or land, or violation of control order restraining pollution of water or
streams or wells or violation of Board order of closure of industry or stoppage of
water or electricity supply etc., the penalty is imprisonment for one and a half
years to six years and fine. If it continues there is an additional fine of Rs. 5000/-
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per day and if it continues beyond one year then the penalty is imprisonment of
two to seven years on conviction.

(d) In case of permitting polluting material into any stream, well or land the
penalty is imprisonment for one and a half years to six years or fine or both.

On subsequent conviction the offender is penalized to imprisonment for two to

seven years and fine, and the names of the offenders are published in newspapers
at offender’s expense.

Cognizance of an offence shall be taken by a court on a complaint by:

(1) A Board or an officer authorized by the Board

(2) Any person intending to make a complaint and who has given at least 60 days
notice of the offence.

B. The Air (Prevention and control of Pollution )Act, 1981.

Ans- In case of Air pollution it is the another significant to note that by this act
more than fifty sections, this act provide a legal and effective composition of
Central and State Boards, power to declare pollution control areas, restrictions on
certain industrial units, authority of the Boards to limit emission of air pollutants,
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power of entry, inspection, taking samples and analysis, penalties, offences by

companies and Government and cognizance of offences etc..

The Act specifically empowers State Government to designate air pollution areas
and to prescribe the type of fuel to be used in these designated areas. According to
this Act, no person can operate certain types of industries including the asbestos,
cement, fertilizer and petroleum industries without consent of the State Board.

The Board can predicate its consent upon the fulfillment of certain conditions. The
Air Act apparently adopts an industry wide “best available technology”
requirement. As in the Water Act, courts may hear complaints under the Act only at
the instigation of, or with the sanction of, the State Board.

The Government passed this Act in 1981 to clean up our air by controlling
pollution. It states that sources of air pollution such as industry, vehicles, power
plants, etc., are not permitted to release particulate matter, lead, carbon monoxide,
sulfur dioxide, nitrogen oxide, volatile organic compounds (VOCs) or other toxic
substances beyond a prescribed level.

To ensure this, Pollution Control Boards (PCBs) have been set up by Government
to measure pollution levels in the atmosphere and at certain sources by testing the
air. This is measured in parts per million or in milligrams or micrograms per cubic
meter.
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The particulate matter and gases that are released by industry and by cars, buses
and two wheelers is measured by using air-sampling equipment. However, the
most important aspect is for people themselves to appreciate the dangers of air
pollution and reduce their own potential as polluters by seeing that their own
vehicles or the industry they work in reduces levels of emissions.

This Act is created to take appropriate steps for the preservation of the natural
resources of the Earth which among other things includes the preservation of high
quality air and ensures controlling the level of air pollution.

The main objectives of the Act are as follows:

(a) To provide for the prevention, control and abatement of air pollution.

(b) To provide for the establishment of central and State Boards with a view to
implement the Act.

(c) To confer on the Boards the powers to implement the provisions of the Act and
assign to the Boards functions relating to pollution.

Air pollution is more acute in heavily industrialized and urbanized areas, which are
also densely populated. The presence of pollution beyond certain Limits due to
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various pollutants discharged through industrial emission is monitored by the

PCBs set up in every state.

Powers and Functions of the Boards:

Central Pollution Board:

The main function of the Central Board is to implement legislation created to

improve the quality of air and to prevent and control air pollution in the country.

The-Board advises the Central Government on matters concerning the

improvement of air quality and also coordinates activities, provides technical
assistance and guidance to State Boards and lays down standards for the quality of
air. It collects and disseminates information in respect of matters relating to air
pollution and performs functions as prescribed in the Act.

State Pollution Control Boards

The State Boards have the power to advise the State Government on any matter
concerning the prevention and control of air pollution. They have the right to
inspect at all reasonable times any control equipment, industrial plant, or
manufacturing process and give orders to take the necessary steps to control
pollution.
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They are expected to inspect air pollution control areas at intervals or whenever
necessary. They are empowered to provide standards for emissions to be laid down
for different industrial plants with regard to quantity and composition of emission
of air pollutants into the atmosphere.

A State Board may establish or recognize a laboratory to perform this function. The
State Governments have been given powers to declare air pollution control areas
after consulting with the State Board and also give instructions to ensure standards
of emission from automobiles and restriction on use of certain industrial plants.

Penalties:

The persons managing industry are to be penalized if they produce emissions of air
pollutants in excess of the standards laid down by the State Board. The Board also
makes applications to the court for restraining persons causing air pollution.

Whoever contravenes any of the provision of the Act or any order or direction
issued is punishable with imprisonment for a term which may extend to three
months or with a fine of Rs. 10,000 or with both, and in case of continuing offence
with an additional fine which may extend to Rs 5,000 for every day during which
such contravention continues after conviction for the first contravention.

C. Noise pollution control order 2000

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Ans- Ostensibly in India, Noise Pollution is one of the major environmental

concerns, the major sources of noise pollution are: vehicular traffic, industries,
household instruments, loudspeakers, etc. The control measures include silencer in
vehicles, precautions during establishment of industries e.g. better technology
adoption; use of ear plugs , etc. for workers; minimizing the use of loudspeakers
keeping them at low volume during public festivities and religious functions,
growing of more trees, as trees absorb sound; etc.

Law relating to Noise Pollution in India

In India, various legislations contain provisions for noise abatement. The Motor
Vehicles Act, 1988, The Industries Act, Specific Relief Act for redresses against
health hazards, Environment (Protection) Act, 1986 etc. and the 1987 Amendments
to the Air Act, 1981, specifically extend the provisions of the Act, including
increased penalties, citizens’ suits and the issuance of injunctions by magistrates, to
noise pollution.

In 1989, the Environment (Protection) Rules were amended to prescribe ambient

air quality standards in respect of noise. These standards lay down the day time and
night time limits of noise in industrial, commercial and residential areas as well as
in “silence zones”. A silence zone is an area up to 100 meters around hospitals,
educational institutions, courts, etc. which is also declared by the competent
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authority. The use of vehicular horns, loudspeakers and the bursting of crackers are
banned in silence zones.

Noise Pollution (Regulation and Control) Rules, 2000: Keeping in view the
objective of maintaining the ambient air quality standards in respect of noise, the
Central Government in exercise of its powers framed the Noise Pollution
(Regulation and Control) Rules, 2000. These rules relate to maintaining of ambient
air quality standards in respect of noise in different areas/ zones, responsibility as
to enforcement of noise pollution control measures, restriction in the use of
loudspeakers/public address systems, consequences of any violation in silence
zones/ areas, authorities to whom complaints may be made for violation of the
rules and the power to prohibit the continuation of noise pollution.

Under the Noise Rules, 2000, separate ambient levels are fixed for industrial,
commercial and residential areas and silence zones. The prescribed day time level
(6.00 AM to 10.00 PM) is typically ten decibels higher than the corresponding
levels for night time. An area comprising not less than 100 meters around hospitals,
educational institutions and courts may be declared as ‘silence area/zone’ for the
purpose of these rules [Rule 3 (5)]. The States are required to designate an
authority or officer responsible for maintaining the ambient standards [Rule 4]. The
designated authority could be the District Magistrate or Police Commissioner or
any other official [Rule 2 (c)].
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The noise pollution can be attached either under the law of torts or under the Code
of Criminal Procedure as a nuisance. In 1992, Tis Hazari Court in Delhi ordered
the municipal authorities to control noise level at public functions (however, the
order remains ineffective till today). Noise pollution complaints are usually
ineffective and not even recorded by the police. Nevertheless, the higher judiciary
in India has evolved certain principles to check the noise pollution.

Case Law : Dhanna Lal vs. Thakur Chittar Singh:

This case is very much significant as the principles relating to private nuisance are
enunciated in it.

Case Brief: The plaintiff respondent had his house at a distance of 8 or 9 feet from
the flour mill belonging to the defendants. The plaintiff alleged that the working of
flour mill caused great trouble to the occupants of the house, due to abnormal or
unreasonable noise. The defendants contended that noise, however, can never
amount to actionable nuisance, and that they have taken licence from the
Municipal Committee.

Observations: The High Court first clarified the distinction between public and
private nuisance. A public nuisance is always a criminal offence; the same cannot
be said of a private nuisance. Thus, the acts constituting public nuisance are all of
them unlawful acts; those which constitute private nuisances are not necessarily or
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usually unlawful. When a person’s conduct unduly interferes with his neighbor in
the comfortable and convenient enjoyment of his land, it is a private nuisance. It
will be manifest that making ‘unreasonable noises’ comes in this category and to
be actionable it must be such as to be a real interference with the comfort or
convenience of living according to the standards of the ‘average man’.

In Church of God (Full Gospel) in India v K.K.R. Majestic Colony Welfare

Association and others. This case is very famous and widely known as “Church
Case” In this case, the question revolved around the right of a community to add to
noise pollution on ground of religion. The Supreme Court affirmed the Bombay
High Court’s order directing the Church to bring down the noise level by keeping
their speakers at a lower level. It is a judgment of providence and prudence where
the apex court has shown its anxiety for combating environmental assaults caused
by human activities.

The court held – No religion prescribes that prayers should not be performed by
disturbing the peace of others nor it preach that they should be through neither
voice amplifiers nor beating of drums. In a civilized society in the name of
religion, activities which disturb old or infirm persons, students or children or other
persons cannot be permitted.
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Because of urbanization or industrialization the noise pollution may in some area

of a city/town be exceeding permissible limits, prescribed under the Rules, but that
would not be a ground for permitting others to increase the same by beating of
drums or by use of voice amplifiers/loudspeakers, etc. and, therefore rules
prescribing reasonable restrictions including the Rules for the use of loudspeakers
and voice amplifiers framed under the Madras Town Nuisance Act, 1889 and also
Noise Rules, 2000 are required to be enforced. Rules 3 to 8 of the later Rules are
unambiguous, clear and speak for themselves. However, there is lack of awareness
among the citizens as well as the implementation authorities about the Rules of its
duty to implement the same.

Measures to Curbing Noise Pollution: Followings are the immediate measures are
needed to be taken and as follows:

o The prescribed standards regarding noise by Government of India may be

enforced strictly in letter and spirit;
o Separate self contained legislation dealing with all aspects of noise pollution
may be enacted;
o The case should be decided within a prescribed time limit;
o Limiting the hours of the use of loudspeakers in religious places and for
other social gatherings and functions;
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o The press and media should play a constructive role to highlight the
disastrous effects of noise pollution and its remedy.

Conclusion

Thus, In Conclusion, I would like to state that a lot needs to be done to control this
menace in India. People should be aware about the consequences of this major
environmental concern which is often missed by our government; Noise pollution
affects the overall healthy systems of society. Therefore, this issue may require
more attention like other environment-related problems so as to could minimize the
risk.

D. Land Pollution.

Ans- The term for soil contamination (for example, by factory chemicals or
sewage and other wastewater). In this article, we'll define it more widely to include
garbage and industrial waste, agricultural pesticides and fertilizers, impacts from
mining and other forms of industry, the unwanted consequences of urbanization,
and the systematic destruction of soil through over-intensive agriculture; we'll take
land pollution to mean any kind of long-term land damage, destruction,
degradation, or loss.

Causes of land pollution

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There are many different ways of permanently changing the land, from soil
contamination (poisoning by chemicals or waste) to general urbanization (the
systematic creation of cities and other human settlements from greenfield, virgin
land). Some, such as huge landfills or quarries, are very obvious; others, such
as atmospheric deposition (where land becomes contaminated when air pollution
falls onto it) are much less apparent. Let's consider the main causes and types of
land pollution in turn.

Waste disposal
Humans produce vast quantities of waste—in factories and offices, in our homes
and schools, and in such unlikely places as hospitals. Even the most sophisticated
waste processing plants, which use plasma torches (electrically controlled "flames"
at temperatures of thousands of degrees) to turn waste into gas, produce solid
waste products that have to be disposed of somehow. There's simply no getting
away from waste: our ultimate fate as humans is to die and become waste products
that have to be burned or buried..

Waste disposal didn't always mean land pollution. Before the 20th century, most of
the materials people used were completely natural (produced from either plants,
animals, or minerals found in the Earth) so, when they were disposed of, the waste
products they generated were natural and harmless too: mostly organic (carbon-
based) materials that would simply biodegrade (break down eventually into soil-
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like compost). There was really nothing we could put into the Earth that was more
harmful than anything we'd taken from it in the first place. But during the 20th
century, the development of plastics (polymers generally made in chemical plants
from petroleum and other chemicals), composites (made by combining two or
more other materials), and other synthetic (human-created) materials has produced
a new generation of unnatural materials that the natural environment has no idea
how to break down. It can take 500 years for a plastic bottle to biodegrade, for
example. And while it's easy enough to recycle simple things such as cardboard
boxes or steel cans, it's much harder to do the same thing with computer circuit
boards made from dozens of different electronic components, themselves made
from countless metals and other chemicals, all tightly bonded together and almost
impossible to dismantle.

Nothing illustrates the problem of waste disposal more clearly than radioactive
waste. When scientists discovered how to create energy by
splitting atoms in nuclear power plants, they also created the world's hardest waste
disposal problem. Nuclear plants produce toxic waste that can remain dangerously
radioactive for thousands of years and, what's worse, will contaminate anything or
anyone that comes into contact with it. Nuclear plants that have suffered
catastrophic accidents (including the Chernobyl plant in the Ukraine, which
exploded in 1986, and the Fukushima plant in Japan, which was damaged by an
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earthquake in 2011) are generally sealed with concrete and abandoned indefinitely.
Not surprisingly, local communities object vociferously to having nuclear waste
material..

Although there are many responsible mining companies, and environmental laws
now tightly restrict mining in some countries, mines remain among the most
obvious scars on (and under) the landscape. Surface mining (sometimes called
quarrying or opencast mining) requires the removal of topsoil (the fertile layer of
soil and organic matter that is particularly valuable for agriculture) to get at the
valuable rocks below. Even if the destruction of topsoil is the worst that happens, it
can turn a productive landscape into a barren one, which is a kind of pollution. You
might think a mine would only remove things from the land, causing little or no
pollution, but mining isn't so simple. Most metals, for example, occur in rocky
mixtures called ores, from which the valuable elements have to be extracted by
chemical, electrical, or other processes. That leaves behind waste products and the
chemicals used to process them, which historically were simply dumped back on
the land. Since all the waste was left in one place, the concentration of pollution
often became dangerously high. When mines were completely worked out, all that
was left behind was contaminated land that couldn't be used for any other purpose.
Often old mines have been used as landfills, adding the insult of an inverted
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garbage mountain to the injury of the original damage. But at least it saved
damaging more land elsewhere.

Urbanization
Humans have been making permanent settlements for at least 10,000 years and,
short of some major accident or natural disaster, most of the cities and towns we've
created, and the infrastructure that keeps them running, will remain with us for
thousands more years into the future. Not many of us would automatically classify
cities and other human settlements as "land pollution"; people obviously need to
live and work somewhere. Even so, urbanization marks a hugely important change
to the landscape that can cause land pollution in a variety of subtle and not-so-
subtle ways.

With over 7 billion people on the planet, it might come as a surprise to find that
humans have urbanized only about 3 percent of Earth's total land surface though
almost a third of the total land area has been transformed if we include agriculture .
Our impact on the planet extends much further than urbanization might suggest. In
1996, Herbert Girardet estimated that London, England has an ecological
footprint (area of land needed to support it) some 125 times bigger than the city
itself . Add up that effect for every major city in the world and you get an idea of
how big an impact urbanization has had.
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One of the problems of urbanization is that, by concentrating people, it

concentrates their waste products at the same time. So, for example, crudely
disposing of sewage from a big city automatically creates water or land pollution,
where the same number of people and the same volume of sewage might not create
a problem if it were created in 10 smaller cities or 100 small towns. Concentration
is always a key factor when we talk about pollution. Having said that, it's important
to remember that urbanization, when it works, can also help people to live very
efficiently. Thus, New York has the lowest ecological footprint of any state in the
USA, largely because people there have smaller homes and make greater use of
public transportation .

Agricultural chemicals

Those of us who are lucky enough to live in rich countries take our basic survival
for granted: aside from trips to the grocery store, we don't worry about where our
food comes from or how it gets to us. The reality is that seven billion hungry
people consume a vast amount of food. Feeding the world on such a scale is only
possible because agriculture now works in an industrial way, with giant machines
such as tractors and combine harvesters doing the work that hundreds of people
would have done in the past, and chemicals such as fertilizers and pesticides
(herbicides that kill weeds and insecticides that kill bugs) increasing the amount of
food that can be grown on each piece of land. Unfortunately, most pesticides are by
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definition poisons, and many remain in the soil or accumulate there for years. One
infamous and now widely banned pesticide, DDT, is not ordinarily biodegradable
so it has remained in the environment ever since it was first used in the mid-20th
century and even spread to such places as Antarctica . DDT is just one of many
organic (carbon-based) chemicals that remain in the environment for years or
decades, known as persistent organic pollutants.

Atmospheric deposition
Air pollution doesn't remain air pollution forever. Ideally it disperses, so the
concentration of problematic chemicals becomes so low that it no longer
constitutes pollution. Sometimes, though, it falls back to the ground and becomes
either water pollution (if it enters the oceans, rivers, and lakes) or land pollution.
Pollution created ("deposited") in water or land from existing pollution in the air
(atmosphere) is known as atmospheric deposition. Land can become polluted by
deposition in some very unexpected ways. For example, a corridor of land either
side of a highway or freeway becomes systematically polluted over time with all
kinds of harmful byproducts of road travel—everything from fuel spills
and brake linings to dust worn from the pavement and heavy metal deposits (such
as lead) washed from the engines. These chemicals accumulate in the soil where
they can undergo reactions with one another and form substances that are even
more toxic.
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Two important things are worth noting about atmospheric deposition. First, it
means no land on Earth—not even the most isolated island—can be considered
completely safe from pollution: even if it's hundreds or thousand miles from the
nearest factory or human settlement, even if no human has ever lived there, it could
still be polluted from the air. Second, if you're doing something that causes
pollution (maybe spreading weedkiller on your garden or perhaps running a factory
where ash is discharged from a smokestack), the effects are not necessarily going
to be confined to the place where the pollution is first produced. It's important to
remember that pollution knows no boundaries.

Soil erosion.
If you define "land pollution" as irreversible damage to the land, you have to
include soil erosion as a type of pollution too. Many people think soil is soil,
always there, never changing, ever ready to grow whatever crops we choose to
bury in it. In reality, soil is a much more complex growing habitat that remains
productive only when it is cared for and nurtured. Too much wind or water,
destruction of soil structure by excessive plowing, excessive nutrients, overgrazing,
and overproduction of crops erode soil, damaging its structure and drastically
reducing its productivity until it's little more than dust. At its worst, soil erosion
becomes desertification: once-productive agricultural areas become barren,
useless deserts. How serious is the problem? In 2001, former UN Secretary
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General Kofi Annan warned the world that: "Drought and desertification threaten
the livelihood of over 1 billion people in more than 110 countries around the
world." Deforestation doesn't only harm the place where the trees are cut down. A
2013 study by Princeton University researchers found that if the Amazon rainforest
were completely destroyed, it would have a dramatic effect on the atmosphere,
which would carry across to places like the United States, causing drought and
potentially desertification there as well .

Unfortunately, because soil erosion has so far affected developing countries more
than the developed world, it's a problem that receives relatively little attention.
Accelerating climate change will soon alter that. In a future of hotter weather and
more intense storms, it will become increasingly difficult to maintain soil in a
fertile and productive state, while heavy rainstorms and flash floods will wash
away topsoil more readily. Meanwhile, agriculture may become impossible in
coastal areas inundated by saltwater carried in by rising sea levels. We might think
of global warming as an example of air pollution (because it's caused mostly by
humans releasing gases such as carbon dioxide into the atmosphere). But if it leads
to dramatic sea-level rise and coastal erosion, you could argue that it will become
an example of land pollution as well.

Effects of land pollution

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With luck and the right atmospheric conditions, air and water pollution disperse
and disappear. What makes land pollution such a problem is that land is static, so
land pollution stays exactly where it is until and unless someone cleans it up. Land
that's polluted stays polluted; land that's urbanized almost invariably stays
urbanized. As we've already see, plastics take hundreds of years to disappear while
radiation can contaminate land for ten times longer. That means landfill sites and
radioactive waste dumps remain that way pretty much indefinitely.

The simplest effect of land pollution is that it takes land out of circulation. The
more land we use up, the less we have remaining. That might not sound a problem
where there's plenty of land in rural areas, but it's certainly a concern where
productive agricultural land is concerned, especially as the world's population
continues to increase. The biggest problem comes when contaminated land is
returned to use, either as building or agricultural land. Houses might be built
on brownfield (former industrial) sites that haven't been cleaned up properly,
putting future owners and their families at risk. Or people might get their water
from rivers supplied by groundwater contaminated by landfill sites, mine
workings, or otherwise polluted land some distance away. Illnesses such as cancer
develop over years or decades for a variety of reasons and it's extremely difficult to
prove that they've been caused by something like local environmental pollution,
especially when people move homes during their lifetime. No-one knows how
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much land is contaminated, how contamination varies from one place to another, or
how land contaminants react with one another once they enter watercourses and
become water pollution. So the scale of the problem and its ultimate effects are
impossible to determine.

However, we do know what effect individual pollutants have. We know, for

example, that lead is a toxic heavy metal that has all kinds of unpleasant effects on
human health; it's been implicated in developmental deficits (such as reductions in
intelligence) in children. We know that some chemicals are carcinogenic (cancer-
causing) while others cause congenital defects such as heart disease . At the very
least, it seems prudent not to introduce dangerous chemicals, such as persistent
organic pollutants, into the environment where they may mat harm people's health
for many years into the future.

Solutions

Why does land pollution matter? Although Earth might seem a pretty big place,
only about a third of its surface is covered in land, and there are now over seven
billion people trying to survive here. Most of our energy (around 85 percent
worldwide still comes from fossil fuels buried under the ground and, since we
haven't yet figured out how to mine in space, so do all our minerals. Much of our
food is grown on the surface of the planet; the water we need comes from the
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planet's surface too or from rocks buried just underground. In short, our lives are as
intimately tied to the surface of Earth as the plants that grow from the ground.
Anything that degrades, damages, or destroys the land ultimately has an impact on
human life and may threaten our very ability to survive. That's why we need
solutions to the problem.

What kind of solutions? Ideally, we'd look at every aspect of land pollution in turn
and try to find a way of either stopping it or reducing it. With problems like waste
disposal, solutions are relatively simple. We know that recycling that can
dramatically reduce the need for sending waste to landfills; it also reduces the need
for incineration, which can produce "fly ash" (toxic airborne dust) that blows may
miles until it falls back to land or water. We'll always need mines but, again,
recycling of old materials can reduce our need for new ones. In some countries, it's
now commonplace to require mine operators to clean-up mines and restore the
landscape after they've finished working them; sometimes mine owners even have
to file financial bonds to ensure they have the money in place to do this. Greater
interest in organic food and farming might, one day, lead to a reduction in the use
of harmful agricultural chemicals, but that's unlikely to happen anytime soon. Even
so, public concerns about food and chemical safety have led to the withdrawal of
the more harmful pesticides—in some countries, at least. Meanwhile, international
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efforts, such as the United Nations Convention to Combat Desertification, are

helping to focus attention on major problems like soil erosion.

Ideally, we don't just need to stop polluting land: we also need to clean up the
many contaminated sites that already exist. Many former nuclear sites have already
been cleaned up as much as possible; in the UK, for example, the Nuclear
Decommissioning Authority is currently spending around £117 billion ($146,000
million) to clean up 17 former nuclear sites—and the figure keeps on rising . In the
United States, a program called the Superfund has been decontaminating hundreds
of polluted sites since 1980. Where sites can't be completely restored, it's possible
to "recycle" them and benefit the environment in other ways; for example, a
number of contaminated sites and former mines in the United States have now
become wind farms or sites for large areas of solar panels.

New technologies will almost certainly make it easier to "recycle" polluted land in
future. For example, the relatively new form of waste disposal called plasma
gasification makes it possible to "mine" former landfills, converting the old waste
into an energy-rich gas and a relatively safe solid waste that can be used as a
building material. Bioremediation is another very promising land-cleaning
technology, in which microbes of various kinds eat and digest waste and turn it into
safer end-products;phyto remediation is a similar concept but involves using
plants, such as willow trees, to pull contaminants from the soil.
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All these things offer hope for a better future—a future where we value the
environment more, damage the land less—and realize, finally, that Earth itself is a
limited and precious resource.

Unit- 3- General Environment Legislations and Protection of Forests and Wild

Life.

A. Enviroment (Protection) Act, 1986

Ans- THE ENVIRONMENT (PROTECTION) ACT, 1986 (EPA)

Introduction

The Environment (Protection) Act was enacted in the year 1986. It was enacted
with the main objective to provide the protection and improvement of environment
and for matters connected therewith. The Act is one of the most comprehensive
legislations with pretext to protection and improvement of environment.

The Constitution of India also provides for the protection of the environment.
Article 48A of the Constitution specifies that the State shall endeavor to protect
and improve the environment and to safeguard the forests and wildlife of the
country. Article 51 A further provides that every citizen shall protect the
environment.
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Premises of the Act

It is now generally accepted that environment is threatened by a wide variety of

human activities ranging from the instinctive drive to reproduce its kind to the
restless urge of improving the standards of living, development of technological
solutions to this end, the vast amount of waste, both natural and chemical, that
these advances produce. Paradoxically, this urge to grow and develop, which was
initially uncontrolled is now widely perceived to be threatening as it results in the
depletion of both living and non-living natural resources and life support systems.
The air, water, land, living creatures as well as the environment in general is
becoming polluted at an alarming rate that needs to be controlled and curbed as
soon as possible.

The 1986 Act was enacted in this spirit. From time to time various legislations
have been enacted in India for this purpose. However, all legislations prior to the
1986 Act have been specific relating to precise aspects of environmental pollution.
However, the 1986 Act was a general legislation enacted under Article 253
(Legislation for giving effect to international agreements.—Notwithstanding
anything in the foregoing provisions of this Chapter, Parliament has power to make
any law for the whole or any part of the territory of India for implementing any
treaty, agreement or convention with any other country or countries or any decision
made at any international conference, association or other body) of the
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Constitution, pursuant to the international obligations of India. India was a

signatory to the Stockholm Conference of 1972 where the world community had
resolved to protect and enhance the environment.

The United Nations conference on human environment, held in Stockholm in June

1972, proclaimed that “Man is both creator and molder of his environment, which
gives him physical sustenance and affords him the opportunity for intellectual,
moral, social and spiritual growth. In the long and tortuous evolution of the human
race on this planet a stage has reached when through the rapid acceleration of
science and technology man has acquired the power to transform his environment
in countless ways and on unprecedented scale. Both aspects of man’s environment,
the natural and man made are essential to his well being and to the enjoyment of
basic human rights even the right to life itself”.

While several legislations such as The Water (Prevention and Control of Pollution)
Act, 1974 and The Air (Prevention and Control of Pollution) Act, 1981 were
enacted after the Conference, the need for a general legislation had become
increasingly evident. The EPA was enacted so as to overcome this deficiency.

Objectives
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As mentioned earlier, the main objective of the Act was to provide the protection
and improvement of environment and for matters connected therewith. Other
objectives of implementation of the EPA are:

 To implement the decisions made at the UN Conference on Human

Environment held at Stockholm in June, 1972.

 To enact a general law on the areas of environmental protection which were

left uncovered by existing laws. The existing laws were more specific in
nature and concentrated on a more specific type of pollution and specific
categories of hazardous substances rather than on general problems that
chiefly caused major environmental hazards.

 To co-ordinate activities of the various regulatory agencies under the

existing laws

 To provide for the creation of an authority or authorities for environmental

protection

 To provide a deterrent punishment to those who endanger human

environment, safety and health

Scope and Applicability

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The Environment (Protection) Act is applicable to whole of India including Jammu

& Kashmir. It came into force on November 19, 1986.

Definitions

Section-2 of the EPA deals with definitions. Some important definitions provided
in the Section are:

Section 2 (a) “Environment” includes water, air, and land and the interrelationship
that exists among and between water, air and land and human beings, other living
creatures, plants, micro-organism and property. This definition is not exhaustive
but an inclusive one.

Section 2 (b) “Environmental Pollutant” means any solid, liquid or gaseous

substance present in such concentration as may be, or tend to be injurious to
environment.

Section 2 (c) “Environmental Pollution” means the presence in the environment of

any environmental pollutant. This implies the imbalance in environment. The
materials or substances when after mixing in air, water or land alters their
properties in such manner, that the very use of all or any of the air water and land
by man and any other living organism becomes lethal and dangerous for health.
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Section 2 (e) “Hazardous Substance” means any substance or preparation which,

by reasons of its chemical or physico-chemical properties or handling, is liable to
cause harm to human beings, other living creatures, plants, micro-organism,
property or environment.

Powers of Central Government to take measures to Protect and Improve

Environment According to the provisions of the Act, the Central Government
shall have the power to take all such measures as it deems necessary or expedient
for the purpose of protecting and improving the quality of the environment and
preventing controlling and abating environmental pollution. Such measures may
include measures with respect to all or any of the following matters, namely: a) co-
ordination of actions by the State Governments, officers and other authorities-

(a) Under this Act, or the rules made there under, or

(b) Under any other law for the time being in force which is relatable to the objects
of this Act;

1. b) planning and execution of a nation-wide programme for the prevention,

control and abatement of environmental pollution;

2. c) laying down standards for the quality of environment in its various

aspects;
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3. d) laying down standards for emission or discharge of environmental

pollutants from various sources whatsoever: Provided that different
standards for emission or discharge may be laid down under this clause from
different sources having regard to the quality or composition of the emission
or discharge of environmental pollutants from such sources;

4. e) restriction of areas in which any industries, operations or processes or

class of industries, operations or processes shall not be carried out or shall be
carried out subject to certain safeguards;

5. f) laying down procedures and safeguards for the prevention of accidents

which may cause environmental pollution and remedial measures for such
accidents;

6. g) laying down procedures and safeguards for the handling of hazardous

substances;

7. h) examination of such manufacturing processes, materials and substances as

are likely to cause environmental pollution;

8. i) carrying out and sponsoring investigations and research relating to

problems of environmental pollution;

9. j) inspection of any premises, plant, equipment, machinery, manufacturing or

other processes, materials or substances and giving, by order, of such
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directions to such authorities, officers or persons as it may consider

necessary to take steps for the prevention, control and abatement of
environmental pollution;

10. k) establishment or recognition of environmental laboratories and institutes

to carry out the functions entrusted to such environmental laboratories and
institutes under this Act;

11. l) collection and dissemination of information in respect of matters relating

to environmental pollution;

12. m) preparation of manuals, codes or guides relating to the prevention,

control and abatement of environmental pollution;

13. n) such other matters as the Central Government deems necessary or

expedient for the purpose of securing the effective implementation of the
provisions of this Act.

The Central Government may, if it considers it necessary or expedient so to do for

the purpose of this Act, by order, published in the Official Gazette, constitute an
authority or authorities by such name or names as may be specified in the order for
the purpose of exercising and performing such of the powers and functions
(including the power to issue directions under section (5) of the Central
Government under this Act and for taking measures with respect to such of the
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matters referred to in sub-section (2) as may be mentioned in the order and subject
to the supervision and control of the Central Government and the provisions of
such order, such authority or authorities may exercise and powers or perform the
functions or take the measures so mentioned in the order as if such authority or
authorities had been empowered by this Act to exercise those powers or perform
those functions or take such measures.

As considerable adverse environment impact has been caused due to degradation

of the environment with excessive soil erosion and water and air pollution due to
certain development activities therefore it is necessary to protect the environment.
This can be achieved only by careful assessment of a project proposed to be
located in any area, on the basis of an environment impact assessment and
environment management plan for the prevention, elimination or mitigation of the
adverse impacts, right from the inception stage of the project.

The Central Government has passed certain notifications laying that the expansion
or modernization of any existing industry or new projects listed shall not be
undertaken in any part of India, unless it gets environmental clearance by the
Central Government, or the State Government.

Powers of the Court

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The Act does not curtail the powers of the Supreme Court. It has from time to time
in various matters issued directions and orders to control pollution. Some such
important cases pertaining to protection of environment are:

 Directions issued to control vehicular pollution

In Mehta v Union of India (1998) 6 SCC 63, in order to control the chaotic traffic
conditions and vehicular pollution, the Supreme Court issued the following
directions.

(a) All commercial/transport vehicles which are more than 20 years old should be
phased out and not permitted to ply in Delhi after October 1998

(b) All such commercial /transport vehicles which are 17 to 19 years old (3200)
shall not be permitted to ply in the National Capital Territory, Delhi after 1998;

(c) Such of the commercial /transport vehicles which are 15 and 16 years old
(4962) shall not be permitted to ply after December 31, 1998

The Supreme Court made this order applicable to all commercial/transport vehicles
whether registered in the National Capital Territory of Delhi or outside (but ply in
Delhi) which are of more than stipulated age and which do not have any authority
to ply in Delhi.
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 Protection of Coastline of India

In Indian Council for Enviro-Legal Action v Union of India22 the Supreme Court
in regard to the 600 kms long coast line emphasized that that it would be the duty
and responsibility of the coastal states and Union Territories in which the stretch
exists, to see that the notifications issued, declaring the coastal stretches should be
properly and duly implemented. Further the various restrictions on the setting up
and expansion of industries, operation or process, etc. in the regulation Zone
should be strictly enforced.

In the same case the court enunciated the principle further that the polluter pays.
Once the activity carried on is hazardous or inherently dangerous, the person
carrying on such activity is liable to make good the loss caused to any other person
irrespective of the fact whether he took reasonable care while carrying on his
activity. Under this principle it is not the role of the Government to meet the costs
involved in either prevention of such damage or in carrying out remedial action,
because the effect of this would be to shift the financial burden of the pollution
incident on the taxpayer. The responsibility of repairing the damage is that of the
offending industry.

 Other cases
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In Vellore Citizen Welfare Forum v. Union of India & others the polluter principle
as interpreted by the Supreme Court means that the absolute liability for harm to
the environment extends not only to compensate the victims of pollution but also
the cost of restoring the environmental degradation. Remediation of the damaged
environment is part of the process of “Sustainable Development” and as such
polluter is liable to pay the cost to the individual sufferer as well as the cost of
reversing the damaged ecology.

In Goa Foundation v Diksha Holdings Pvt. Ltd the court observed that with a view
to protect the ecological balance in the coastal areas, notifications having been
issued by the Central Government, there ought not to be any violation and
prohibited activities should not be allowed to come up within the area declared as
CRZ notification. The court also emphasized that no activities which would
ultimately lead to unscientific and unsustainable development and ecological
destruction should be allowed.

Prevention, Control and Abetment of Environment Pollution

Chapter III of the EPA deals with prevention, Control and abetment of
Environmental Pollution. Some important provisions of this chapter provide that,
No person carrying on any industry, operation or process shall discharge or emit or
permit to be discharged or emitted any environmental pollutant in excess of such
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standards as may be prescribed. No person shall handle or cause to be handled any

hazardous substance except in accordance with such procedure and after
complying with such safe guards as may be prescribed. Where the discharge of any
environmental pollutant in excess of the prescribed standards occurs or is
apprehended to occur due to any accident or other unforeseen act or event, the
person responsible for such discharge and the person in charge of the place at
which the discharge occurs shall be bound to prevent or mitigate the environmental
pollution. and shall also:

(a) Intimate the fact of such occurrence or apprehension of such occurrence; and

(b) Be bound, if called upon, to render all assistance. On receipt of such

information, the authorities or agencies shall cause such remedial measures to be
taken as are necessary to prevent or mitigate the environmental pollution.

The expenses incurred by any authority or agency may be recovered from the
person concerned as arrears of land revenue or of public demand.

Penalties

Section 15 provides for Penalties for contravention of the provisions of the Act as
well as the Rules, Orders and Directions. Whoever fails to comply with or
contravenes any of the provisions, rules, orders or directions of this Act shall be
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punishable with imprisonment for a term which may extend to five years or with
fine which may extend to one lakh rupees, or with both. In case the failure or
contravention continues, with additional fine which may extend to five thousand
rupees for every day during which such failure or contravention continues.

If the failure or contravention continues beyond a period of one year after the date
of conviction, the offender shall be punishable with imprisonment for a term
which, may extend to seven years.

• Offences by Companies

Offences by Companies are dealt with under Section16. Where any offence is
committed by a company, every person who, at the time the offence was
committed, was directly incharge of, and was responsible to, the company for the
conduct of the business of the company shall be deemed to be guilty of the offence.

If he proves that the offence was committed without his knowledge or that he
exercised due diligence to prevent the commission of such offence he shall not be
liable to any punishment.

Where the offence has been committed with the consent or connivance of or is
attributable to any neglect on part of , any director, manager, secretary or other
officer of the company, such person shall be deemed to be guilty of the offence
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 Cognizance of Offences and Bar of Jurisdiction of Civil Courts

As per the provisions of Section 19 of the EPA, no court shall take

cognizance of any offence under this Act except on a complaint made by:

(a) The central Government or any authority or officer authorized in this behalf by
that Government; or

(b) Any person who has given notice of not less that 60 days, of the alleged offence
and his intention to make a complaint, to the Central Government or the authority
or officer authorized.

Section 22 provides that no civil court shall have jurisdiction to entertain any suit
or proceeding in respect of anything done, action taken or order or direction issued
by the Central Government or any other authority or officer in pursuance of any
power conferred under the Act.

B. Laws Relating To Forest ( Forest Act, 1927).

Ans- The Indian Forest Act, 1927 was an act to consolidate the then existing laws
relating to forest, the transit of forest products and duties that can be levied on
“Forest Product” as defined in Section 2 (iv) (a) and (b) of the act. The act deals
with reserved forest, village forest, protected forest, control over forests and lands
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not being property of government, the duty on timber and other forest produce,
regulation transit of forest products, collection of timber, penalties and procedures,
cattle – trespass, forest officers and other miscellaneous provisions.

This act does not lay down a specific definition for forests. The act establishes
three categories of forests, reserve forest, protected forest and village forest. The
reserved forests (section 3 to 27 of the Act of 1927) can be notified by the State
Government on any forest land or waste land to which the government has
ownership or right. To be categorized as a reserved forest, the land must be forest
land or waste land in the absence of which the notification could be quashed.
Section 26 of the Indian Forest Act 1927 prohibits a number of activities including
making fresh clearings, tree felling, lopping, burning, grazing, quarrying,
manufacturing activities, hunting, shooting, etc. in the forest. Violation of
provisions of Section 26 specifically with regards to creating fire, felling, girdling,
lopping, etc. of trees, quarrying and manufacturing operations or clearing breaking
up of any land for cultivation is punishable with imprisonment for a term which
may extend to two years or with fine which may extend to Rs. 20,000 but which
shall not be less than Rs. 5,000.

For other offenses under Section 26 an imprisonment for a term which may extend
to 6 months or with fine which may extend to Rs. 1,000 or with both and on the
second and every subsequent conviction for the same offense, with imprisonment
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which may extend to 6 months or with fine which may extend to Rs. 2,000 or with
both is prescribed. It also provides for adjudication of forest rights, uses by local
people as allowed by forest officer, appeals and de notification. Section 25
specifically empowers the forest officer to stop any public or private way or water
coarse in reserved forest. The act also provides for issuing notification regarding
appointment of forest settlement officer to adjudicate rights and granting
permissions for activities and claims.

Section 28 provides for assigning rights of reserved forests or protected forests or

any forest belonging to the state government to any village community and
provisions relating to reserved forest, protected forest or forest belonging to the
government shall apply. Such forests are called village forests.

Section 29 provides for the notification of protected forests. Protected forests are
also notified on forest land or waste land. The state government under provision of
Section 30 may declare any tree or class of trees in a protected forest to be
reserved, it can also declare any portion of a protected forest as closed for a term
not exceeding 30 years during which the rights of private persons shall be
suspended provided that alternate rights are available in the remainder of the forest.
It can also prohibit specified activities within the area Violation of prohibited
activities in protected areas as prescribed in Section 30 and 32 are punishable
offences liable to be punished with imprisonment for a term which may extend to 2
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years or with a fine which may extend to Rs. 5,000 or with both and on the second
and every subsequent conviction for the same offence, with imprisonment for a
term which may extend to 2 years and with fine which may extend to Rs. 10,000.

The state government also has the powers to regulate or prohibit activities in any
forest or waste land not being the property of the government after providing
suitable opportunity to the owner of such forest or land.

C. The Wild Life (Protection) Act, 1972

Ans- Wild Life, which is a part and parcel of the environment,

constitutes wealth of the nation. it included wild animals, birds, plants
etc. However, man, in the process of progress and development and
also for his selfish ends, is causing much damage to the forests and
wild life. Wild life is nature's gift and its decline has an adverse effect
of ecology and hence there is an urgent need to protect the wild life.
Therefore, in order to protect the wild life from destruction, the
Indian Parliament passed the Wild Life (Protection) Act in the year
1972.

Object:
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The main object of the Act is to proved protection to the wild animals
birds and plants. The Act empowers the Central Govt. to declare
certain areas as Sanctuaries or National Parks. The Act prohibits
hunting of wild animals; birds etc. and impose punishment for
violating the same.

Salient Features:

The Act contains 66 Sections divided into seven chapters and six
schedules. Chapter- I (Sec. 1 and 2 ) contains short title and
definitions. Chapter - II deals with Authorities under the Act. Chapter
- III deals with the protection of Specified Plants. Chapter - IV
provides for declaration of sanctuaries, National Parks and Closed
Areas. Chapter - IV - A deals with Central Zoo Authority and
Recognition of Zoos. Chapter- V deals with Trade or Commerce in
Wild Animals, Animal Articles and Trophies. Chapter - V- A deals
with prohibition of Trade Commerce in Trophies, Animal Articles etc.
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Chapter- VI relates to Prevention and Detection of offences and

finally Chapter- VII contains Miscellaneous Provisions.

Authorities:

Sec. 3 of the Act empowers the Central Govt. to appoint the Director
and Asst. Director Wild Life Preservation and other officials and
employees. Further, Sec. 4 empowers, the State Govt. to appoint
Chief Wild Life Warden, Wild Life Wardens and on Honorary Wild
Life Warden in each District and other officers and employees as may
be necessary.

Wild Life Advisory Board:-

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It is constituted in each State or Union Territory to advise the State

govt. in selection and declaration of Sanctuaries, National Parks,
Closed Areas etc. for protection and conservation of wild life.

Hunting of Wild Animals:-

The Act prohibits hunting of wild animals. No person shall hunt any
wild animals as specified in the Schedules. However, there are certain
exceptions. The State Govt. may order to kill or wound in good faith
any wild animal for self-defense or to protect or save another. Any
animal so killed or wounded is not and offence and shall be govt.
property. The Govt. may permit killing of certain wild animals for
academic purpose.

Sanctuaries:-
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The State govt. by notification, may declare any area within the
reserved forest or territorial waters as a sanctuary if it considers fit the
area for protection and conservation of wild life.

National Parts:-

The State govt. by notification, may declare an area whether within a

sanctuary or not, is by reason of its ecological or other technical
grounds needed to be constituted as a national, park for the purpose
of protection, propagating or developing wild life.

Recognition of Zoos:-

Zoo shall be operated without being recognized by the authority. The

person intends to operate a Zoo shall apply to the Authority in such
form and pay such fee prescribed. The applicant should fulfill all the
conditions. Then only the Authority shall grant permission. No
recognition to a Zoo shall be granted unless the Authority having due
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regard to interest of protection and conservation of wild life and such

standards, norms and other matters as may be prescribed, is satisfied
that recognition may be granted. Such Zoo shall acquire or transfer
any wild animal specified in this Act with the previous permission of
the Authority. No person shall tease, molest, injure or feed any animal
or cause disturbance to the animals by noise, or otherwise or litter the
grounds in a zoo.

Trade or Commerce in wild animals, animal articles and trophies:-

All the wild animals, animal articles and trophies shall be the
property to the State Government. No person is entitled to hunt any
wild animals. No person, without the previous permission in the
writing of the Chief Wild Life Warden or the Authorized Officer,
acquire or keep in his possession, custody, or control, or transfer to
any person whether by a way of gift, sale or otherwise or destroy or
damage. At the commencement of this Act, If any person possesses
any animal specified in this Act or any uncured trophy derived from
such animal or salted or dried skins of such animal or the musk or a
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musk deer or dorm of a rhinoceros shall declare and obtain the

permission from the Chief Wild Life Warden or the authorized
person. After the commencement of this Act no person shall acquire,
receive, keep in his control, custody or possession sell, offer for sale
or otherwise transfer or transport any animal specified in the Act or
any uncured trophy or meat derived from such animal or the skins or
musk or horn without the previous permission in writing of the Chief
Wild Life Warden or the Authorized person. Dealings in trophies and
animal articles without license is prohibited.

Purchase of animal:

The person who obtains wild animals with the previous permission of
the Authorities shall not sell it. He shall keep it in a habitat and
healthy conditions.

Power of entry, search, arrest, and detention:

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Any authorized person under this Act is entitled and has power of
entry, search, arrest and detention of any premises. He can stop
vehicle or vessel. He can enter any premises. He can seize any
captive animal - wild animal, animal article, meat, trophy or uncured
trophy or any specified plant or part of derivative thereof forms the
possessor.

Penalties: (Section 51 of Wild Life Protection Act)

Any person who contravenes any provision of the act [except chapter
V-A (prohibition of trade or commerce in trophies or Animal articles)
and section 38 J (prohibition of teasing of animals)] or any rule made
there under, or who commits a breach of any conditions of any
licence or permit granted under this act shall be punishable with
imprisonment for a term which may extend to Three years or with
fine may extend to

Twenty Five Thousand rupees or both .

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If any offence committed in relation to any animal specified in

Schedule-I or Part-II of Schedule-II on where offence relates to
hunting in a Sanctuary or National Park or altering the boundaries of
Sanctuary or National Park such offence shall be punishable with
imprisonment for a term which shall not be less thanThree years but
may extend to seven years and also with fine which shall not be less
than Ten Thousand rupees.

For second & subsequent offence, the term of imprisonment shall not
be less than Three years & may extend to Seven years and also fine
which shall not be less than Five Thousand rupees

Any person who contravenes any provisions of chapter V-A i.e.

Prohibition of trade or commerce in trophies or animal articles, shall
be punishable with imprisonment for a term which shall not be less
than

Three years and also fine should not less than Ten Thousand rupees
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Any person who contravenes any provisions of section 38 J

[prohibition of teasing of animals] shall be punishable for a term
which may extend to Six Months or with fine may extend to Two
Thousand rupees or both.

Unit- 4 – International Environment Laws and Current Trends

a. Introduction to International Environmental Laws

(1) Stockholm Declaration : Brief overview

Ans: The United Nations Conference on the Human Environment,

having met at Stockholm from 5 to 16 June 1972, having considered
the need for a common outlook and for common principles to inspire
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and guide the peoples of the world in the preservation and

enhancement of the human environment, Proclaims that:

1. Man is both creature and moulder of his environment, which gives

him physical sustenance and affords him the opportunity for
intellectual, moral, social and spiritual growth. In the long and
tortuous evolution of the human race on this planet a stage has
been reached when, through the rapid acceleration of science and
technology, man has acquired the power to transform his
environment in countless ways and on an unprecedented scale.
Both aspects of man's environment, the natural and the man-made,
are essential to his well-being and to the enjoyment of basic
human rights the right to life itself.

2. The protection and improvement of the human environment is a

major issue which affects the wellbeing of peoples and economic
development throughout the world; it is the urgent desire of the
peoples of the whole world and the duty of all Governments
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3. Man has constantly to sum up experience and go on discovering,

inventing, creating and advancing. In our time, man's capability to
transform his surroundings, if used wisely, can bring to all peoples
the benefits of development and the opportunity to enhance the
quality of life. Wrongly or heedlessly applied, the same power can do
incalculable harm to human beings and the human environment. We
see around us growing evidence of man-made harm in many regions
of the earth: dangerous levels of pollution in water, air, earth and
living beings; major and undesirable disturbances to the ecological
balance of the biosphere; destruction and depletion of irreplaceable
resources; and gross deficiencies, harmful to the physical, mental and
social health of man, in the man-made environment, particularly in
the living and working environment.

4. In the developing countries most of the environmental problems

are caused by under-development. Millions continue to live far below
the minimum levels required for a decent human existence, deprived
of adequate food and clothing, shelter and education, health and
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sanitation. Therefore, the developing countries must direct their

efforts to development, bearing in mind their priorities and the need
to safeguard and improve the environment. For the same purpose, the
industrialized countries should make efforts to reduce the gap
themselves and the developing countries. In the industrialized
countries, environmental problems are generally related to
industrialization and technological development.

5. The natural growth of population continuously presents problems

for the preservation of the environment, and adequate policies and
measures should be adopted, as appropriate, to face these problems.
Of all things in the world, people are the most precious. It is the
people that propel social progress, create social wealth, develop
science and technology and, through their hard work, continuously
transform the human environment. Along with social progress and the
advance of production, science and technology, the capability of man
to improve the environment increases with each passing day.

6. A point has been reached in history when we must shape our

actions throughout the world with a more prudent care for their
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environmental consequences. Through ignorance or indifference we

can do massive and irreversible harm to the earthly environment on
which our life and well being depend. Conversely, through fuller
knowledge and wiser action, we can achieve for ourselves and our
posterity a better life in an environment more in keeping with human
needs and hopes. There are broad vistas for the enhancement of
environmental quality and the creation of a good life. What is needed
is an enthusiastic but calm state of mind and intense but orderly work.
For the purpose of attaining freedom in the world of nature, man must
use knowledge to build, in collaboration with nature, a better
environment. To defend and improve the human environment for
present and future generations has become an imperative goal for
mankind-a goal to be pursued together with, and in harmony with, the
established and fundamental goals of peace and of worldwide
economic and social development.

7. To achieve this environmental goal will demand the acceptance of

responsibility by citizens and communities and by enterprises and
institutions at every level, all sharing equitably in common efforts.
Individuals in all walks of life as well as organizations in many fields,
by their values and the sum of their actions, will shape the world
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environment of the future. Local and national governments will bear

the greatest burden for large-scale environmental policy and action
within their jurisdictions. International cooperation is also needed in
order to raise resources to support the developing countries in
carrying out their responsibilities in this field. A growing class of
environmental problems, because they are regional or global in extent
or because they affect the common international realm, will require
extensive cooperation among nations and action by international
organizations in the common interest. The Conference calls upon
Governments and peoples to exert common efforts for the
preservation and improvement of the human environment, for the
benefit of all the people and for their posterity.

Principles States the common conviction that:

Principle 1 Man has the fundamental right to freedom, equality and

adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and
future generations. In this respect, policies promoting or perpetuating
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apartheid, racial segregation, discrimination, colonial and other forms

of oppression and foreign domination stand condemned and must be
eliminated.

Principle 2 The natural resources of the earth, including the air, water,
land, flora and fauna and especially representative samples of natural
ecosystems, must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate.

Principle 3 The capacity of the earth to produce vital renewable

resources must be maintained and, wherever practicable, restored or
improved.

Principle 4 Man has a special responsibility to safeguard and wisely

manage the heritage of wildlife and its habitat, which are now gravely
imperilled by a combination of adverse factors. Nature conservation,
including wildlife, must therefore receive importance in planning for
economic development.

Principle 5 The non-renewable resources of the earth must be

employed in such a way as to guard against the danger of their future
exhaustion and to ensure that benefits from such employment are
shared by all mankind.
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Principle 6 The discharge of toxic substances or of other substances

and the release of heat, in such quantities or concentrations as to
exceed the capacity of the environment to render them harmless, must
be halted in order to ensure that serious or irreversible damage is not
inflicted upon ecosystems. The just struggle of the peoples of ill
countries against pollution should be supported.

Principle 7 States shall take all possible steps to prevent pollution of

the seas by substances that are liable to create hazards to human
health, to harm living resources and marine life, to damage amenities
or to interfere with other legitimate uses of the sea.

Principle 8 Economic and social development is essential for

ensuring a favorable living and working environment for man and for
creating conditions on earth that are necessary for the improvement of
the quality of life.

Principle 9 Environmental deficiencies generated by the conditions of

under-development and natural disasters pose grave problems and can
best be remedied by accelerated development through the transfer of
substantial quantities of financial and technological assistance as a
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supplement to the domestic effort of the developing countries and

such timely assistance as may be required.

Principle 10 For the developing countries, stability of prices and

adequate earnings for primary commodities and raw materials are
essential to environmental management, since economic factors as
well as ecological processes must be taken into account.

Principle 11 The environmental policies of all States should enhance

and not adversely affect the present or future development potential
of developing countries, nor should they hamper the attainment of
better living conditions for all, and appropriate steps should be taken
by States and international organizations with a view to reaching
agreement on meeting the possible national and international
economic consequences resulting from the application of
environmental measures.

Principle 12 Resources should be made available to preserve and

improve the environment, taking into account the circumstances and
particular requirements of developing countries and any costs which
may emanate- from their incorporating environmental safeguards into
their development planning and the need for making available to
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them, upon their request, additional international technical and

financial assistance for this purpose.

Principle 13 In order to achieve a more rational management of

resources and thus to improve the environment, States should adopt
an integrated and coordinated approach to their development planning
so as to ensure that development is compatible with the need to
protect and improve environment for the benefit of their population.

Principle 14 Rational planning constitutes an essential tool for

reconciling any conflict between the needs of development and the
need to protect and improve the environment.

Principle 15 Planning must be applied to human settlements and

urbanization with a view to avoiding adverse effects on the
environment and obtaining maximum social, economic and
environmental benefits for all. In this respect projects which arc
designed for colonialist and racist domination must be abandoned.

Principle 16 Demographic policies which are without prejudice to

basic human rights and which are deemed appropriate by
Governments concerned should be applied in those regions where the
rate of population growth or excessive population concentrations are
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likely to have adverse effects on the environment of the human

environment and impede development.

Principle 17 Appropriate national institutions must be entrusted with

the task of planning, managing or controlling the 9 environmental
resources of States with a view to enhancing environmental quality.

Principle 18 Science and technology, as part of their contribution to

economic and social development, must be applied to the
identification, avoidance and control of environmental risks and the
solution of environmental problems and for the common good of
mankind.

Principle 19 Education in environmental matters, for the younger

generation as well as adults, giving due consideration to the
underprivileged, is essential in order to broaden the basis for an
enlightened opinion and responsible conduct by individuals,
enterprises and communities in protecting and improving the
environment in its full human dimension. It is also essential that mass
media of communications avoid contributing to the deterioration of
the environment, but, on the contrary, disseminates information of an
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educational nature on the need to project and improve the

environment in order to enable mal to develop in every respect.

Principle 20 Scientific research and development in the context of

environmental problems, both national and multinational, must be
promoted in all countries, especially the developing countries. In this
connection, the free flow of up-to-date scientific information and
transfer of experience must be supported and assisted, to facilitate the
solution of environmental problems; environmental technologies
should be made available to developing countries on terms which
would encourage their wide dissemination without constituting an
economic burden on the developing countries.

Principle 21 States have, in accordance with the Charter of the United

Nations and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.

Principle 22 States shall cooperate to develop further the international

law regarding liability and compensation for the victims of pollution
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and other environmental damage caused by activities within the

jurisdiction or control of such States to areas beyond their
jurisdiction.

23 Without prejudice to such criteria as may be agreed upon by the

international community, or to standards which will have to be
determined nationally, it will be essential in all cases to consider the
systems of values prevailing in each country, and the extent of the
applicability of standards which are valid for the most advanced
countries but which may be inappropriate and of unwarranted social
cost for the developing countries.

Principle 24 International matters concerning the protection and

improvement of the environment should be handled in a cooperative
spirit by all countries, big and small, on an equal footing. Cooperation
through multilateral or bilateral arrangements or other appropriate
means is essential to effectively control, prevent, reduce and
eliminate adverse environmental effects resulting from activities
conducted in all spheres, in such a way that due account is taken of
the sovereignty and interests of all States.
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Principle 25 States shall ensure that international organizations play a

coordinated, efficient and dynamic role for the protection and
improvement of the environment. Principle 26 Man and his
environment must be spared the effects of nuclear weapons and all
other means of mass destruction. States must strive to reach prompt
agreement.

2. Rio Declaration: Brief overview.

Ans:- The Rio Declaration on Environment and Development

The 1992 Rio Declaration on Environment and Development defines the rights of
the people to be involved in the development of their economies, and the
responsibilities of human beings to safeguard the common environment. The
declaration builds upon the basic ideas concerning the attitudes of individuals and
nations towards the environment and development, first identified at the United
Nations Conference on the Human Environment (1972).

The Rio Declaration states that long term economic progress is only ensured if it is
linked with the protection of the environment. If this is to be achieved, then nations
must establish a new global partnership involving governments, their people and
the key sectors of society. Together human society must assemble international
agreements that protect the global environment with responsible development.
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There are a number of principles to the Rio Declaration.

 People are entitled to a healthy and productive life in harmony with nature.

 Development today must not threaten the needs of present and future
generations.

 Nations have the right to exploit their own resources, but without causing
environmental damage beyond their borders.

 Environmental protection shall constitute an integral part of the development

process.

 Eradicating poverty and reducing disparities in living standards in different

parts of the world are essential if we are to achieve sustainable development
whilst meeting the needs of the majority of the people.

 Environmental issues are best handled with the participation of all

concerned citizens.

 The polluter should, in principle, bear the cost of pollution.

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 Sustainable development requires better scientific understanding of the

problems. Nations should share knowledge and technologies to achieve the
goal of sustainability.

3. Important Doctrines:
1. Sustainable Development

Ans:- The term ‘Sustainable’ stands for sustainability and it represents an

approach to development which is concerned with such fundamental human
concerns like poverty, environment, equality, democracy, development and peace.
The link between development and peace is now realized.

Meeting the basic needs of poor communities holds the promise of eliminating
many types of situations which favour the outbreak of violence and wars. Not
development, but sustainable development alone can contribute to or benefit the
process of conflict-resolution and to the need to check and prevent armed conflicts.

The 1992 Rio Declaration, presented at the United Nations Conference on

Environment and Development, asserted in its Principle 25, that “Peace,
development and environmental protection are interdependent and indivisible”. In
other words, the idea of peace forms an integral part of the idea of sustainable
development. Presently, these two concepts have come to be regarded as
inseparable.
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The term Sustainable Development was popularized in 1987 by the United Nations
Commission on Environment and Development through the Brundtland Report.
This report, which was entitled Our Common Future, produced the most widely
accepted definition of Sustainable Development—”development that meets the
needs of the present without compromising the ability of future generations to meet
their own needs.”

The Efforts Being Made in the Direction of Sustainable Development:

In 1992, the concept was formalized at the United Nations Conference on

Environment and Development and since then it has become a part of the
vocabulary of governmental, inter- governmental, and non-governmental
institutions in practically all languages. The United Nations has an International
Commission for Sustainable Development which meets each year, with
representatives from all the countries of the world.

The World Bank has a Vice-President for Environmentally Sustainable

Development. The governments of many countries have established national
commissions for sustainable development. International business leaders have
created a Business Commission on Sustainable Development, with representation
at the regional and global levels. International development agencies now actively
promote development projects which pursue sustainability. The international
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community as a whole has now accepted the need for sustainable development
instead of mere development.

Is Sustainable Development Only A Populist Slogan?

However, some classical mainstream economists, together with some politicians

and business leaders, criticize Sustainable Development as the latest buzzword
whose “very appeal lies in its vagueness”. For some, sustainable development is a
Utopian concept, for others a demagoguery, while some others continue to consider
it to be inherently limited in its applicability to the cases of extreme poverty and
the corresponding difficulties confronted by a large part of the world’s population.

Such a reaction of the critics has not been totally unfounded because the term
sustainable development has been at times used very vaguely, and even
misappropriated and misused. A fear has been also expressed in certain quarters
that the term can be used as a front for justifying increasing restrictions on the
process of economic growth based on the trade-offs necessary to address the
question of inter and intra generational distribution. The introduction of
authoritative sustainable policies may at times have a negative impact on the short
term profit margins, although with the balance of a longer useful life given to
investments.
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Whether confronting the challenges of the present or the future, a new approach to
development is a necessity and it requires a real revolution in our behaviour and
mentality. Unless our life-style is subjected to considerable re-evaluation including
the adoption of far-reaching self-control regarding the satisfaction not of real but of
self-gratifying desires, the emphasis on ecology could become yet another
intensifier of the conflict between the rich and the poor.

Sustainable development represents an opportunity to construct a new approach,

and the success of these efforts has powerful implications for issues of peace and
security. In February 2001, the Tata Energy Research Institute organized the first
Sustainable Development Summit in New Delhi. It was attended by
environmentalists from all parts of the world. It fully endorsed the call for adopting
and pursuing the goal of sustainable development.

This concept of Sustainable Development as such has come to be accepted as an

important objective (a value) by the new emerging international order. The world
needs sustainable development as without it there can be no real and enduring
development. Industrial and technological development should be secured in such
a way as should not in any way disturb the ecology of environmental and the socio-
economic cultural life of the people.
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Eco-friendly technologies and not only technologies should be developed. We must

work out the future cost of our present development. In no way should our present
be permitted to destroy our future in the name of development. Sustainable
Development must be accepted as the value and no one should be permitted either
to ignore it or to misuse it for practicing hegemony and exploitation.

2. Precautionary principle: Polluter pays principles.

Ans- The Polluter Pays Principle was first introduced in 1972 by the Organization
for Economic Cooperation and Development (OECD) Guiding Principles
concerning International Economic Aspects of Environmental policies where under
the polluter was held responsible for the environmental damage and pollution.
Subsequently, the Rio Declaration laid down the guidelines for sustainable
development meaning thereby a strategy to cater the needs of the present
generation without compromising the needs of the future generation. In furtherance
of the aim of sustainable development Rio Declaration Principle 16 of the Rio
Declaration enshrined the Polluter Pays principle stating that the polluter should
bear the cost of pollution.

The Polluter Pays Principle imposes liability on a person who pollutes the
environment to compensate for the damage caused and return the environment to
its original state regardless of the intent.
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The Indian Judiciary has incorporated the Polluter Pays Principle as being a part of
the Environmental Law regime is evident from the judgments passed.

 Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC
212
The Court held that once the activity carried on is hazardous or inherently
dangerous, the person carrying on such activity is liable to make good the
loss caused to any other person by his activity irrespective of the fact
whether he took reasonable care while carrying on his activity. The rule is
premised upon the very nature of the activity carried on.

 Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647
The Court interpreted the meaning of the Polluter Pays Principle as the
absolute liability for harm to the environment extends not only to
compensate the victims of the pollution but also the cost of restoring the
environmental degradation. Remediation of the damaged environment is part
of the process of 'Sustainable Development' and as such the polluter is liable
to pay the cost to the individual sufferers as well as the cost of reversing the
damaged ecology."

 The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987 SC
1086
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The Court laid down that an enterprise engaged in a hazardous or inherently

dangerous industry which poses a potential threat to the health and safety of
persons working in the factory and to those residing in the surrounding
areas, owes an absolute and non-delegable duty to the community to ensure
that no harm results to any one on account of hazardous or inherently
dangerous nature of the activity which it has undertaken. The enterprise is
absolutely liable to compensate for such harm and irrespective of all
reasonable care taken on his account. The larger and more prosperous the
enterprise, greater must be the amount of the compensation payable for the
harm caused on account of an accident in the carrying on of the hazardous or
inherently dangerous activity by the enterprise.

 M. C. Mehta vs Kamal Nath & Ors (1997)1SCC388

The Court held that pollution is a civil wrong and is a tort committed against
the community as a whole. Thus, any person guilty of causing pollution has
to pay damages (compensation) for restoration of the environment and
ecology. Under the Polluter Pays Principle, it is not the role of Government
to meet the costs involved in either prevention of such damage, or in
carrying out remedial action, because the effect of this would be to shift the
financial burden of the pollution incident to the taxpayer.
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Conclusion
Although the Polluter Pays Principle has helped to mitigate the damage being
caused to the environment to some extent, the provision remains an inadequate
remedy as ambiguity persists regarding clear identification of the actual polluter.
The polluter may a part of the "production chain" and it is difficult to impose the
liability on such polluter when the courts consider the parameters of extent and
contribution of causing pollution.

Moreover, under this principal, the amount of compensation to be charged for the
restoration of the damage caused to the environment remains to be inadequate in
comparison to the loss actually caused.

More effective and unambiguous provisions with regards to the implementation of

the Polluter Pays Principle would be beneficial in the longer run.

3. Public trust doctrine.

Ans- The doctrine of public trust has evolved over the years to emerge as one of
the core principles for the judiciary to substantiate the legitimacy of governmental
action that interferes with the use by the general public of natural resources. The
incorporation of this doctrine into our legal system has resulted in the imposition of
a much required check upon governmental authorities who seek to divest State
control over such natural resources in favour of private parties. Though the origin
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of the doctrine can be traced to ancient times and it is of considerable vintage in

the United States, its application in the Indian legal system is a modern
development.

Scope and History of Doctrine of Public Trust

The history of the doctrine is traced to the Roman emperor, Justinian. In Book II of
his Institutes, Emperor Justinian proclaims: By the law of nature these things are
common to mankind---the air, running water, the sea, and consequently the shores
of the sea. No one, therefore, is forbidden to approach the seashore.

The public trust doctrine "is based on the notion that the public holds inviolable
rights in certain lands and resources, and that regardless of title ownership”, and
that “the state retains certain rights in such lands and resources in trust for the
public."This conception of public rights has two ancient bases. “First, under
Roman law the air, running water, the sea, and consequently the sea shore' were the
property of no man but rather were common to all." “Second, early English
common law provided that title to tidelands had two components”: “the King's
right of jus privatum, which could be alienated, and the jus public rights of
navigation and fishing, which were held by the King in inalienable trust for the
public”.
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Various Public properties; including rivers, the seashore, and the air, are held by
the government in trusteeship for the uninterrupted use of the public. The
Sovereign could not make clandestine transfer of public trust properties which the
public had a right to enjoy to any private parties if such transfer when effected
could interfere with the interest of the public at large.

Concerted efforts have been adopted to incorporate this doctrine to protect an array
of public properties like non traversable waters, public land, and sand parks and to
relate it to both public and private lands. The Supreme Court of California in its
celebrated decision in Illinois Central R.R. Co. v Illinois has broadened the
definition of public trust by including ecological and aesthetic considerations. It
would be incorrect to say that public trusts doctrine is not without its fair share of
disapproval. However despite the staunch criticism it is being increasingly related
to sustainable development, the precautionary principle and bio-diversity
protection and a host of other new environmental law principles. The doctrine links
the right of public access to public trusts with a precondition of accountability
while making decisive decisions on such resources. Additionally, not only can the
doctrine be put to use for the protection of public from improper application of
planning law but also faulty environmental impact assessment.
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Doctrine of Public Trust and United Nations

The Stockholm Declaration of United Nations on Human Environment clearly

indicates this determining proposition: "The natural resources of the earth,
including the air, water, land, flora and fauna and especially representative samples
of natural system, must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate...

The Doctrine can also be used to influence policy debates and public scoping
sessions and hearings. Through this influence, agencies can be forced to prove that
their actions are not harmful to the environment to that extent that they will result
in the destruction of a public resource. If the agencies fall short of providing a
more environmentally benign alternative, then a Public Trust law suit can be
brought up. Such actions often lead to long and arduous law suits but fortunately
many important precedents in this regard have been established.

A COMPARITIVE ANALYSIS OF THE APPLICATION OF DOCTRINE OF

PUBLIC TRUST IN USA AND INDIA

In theory as against practice a provision with regard to the environment in a

constitution may entail a wide range of consequences. Contingent on the manner in
which the provision is written it might reach any number of activities that affect the
environment. The researcher in this section intends to make an analysis of the
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doctrine of public trust within the Constitutional and legal frame work in the
American legal system.

The doctrine of the Public Trust in the American legal system

The classic American conception of the public trust doctrine is found in the
celebrated decision inIllinois Central Railroad Co. v. Illinois,“where the Supreme
Court invalidated Illinois' grant of title to land under Lake Michigan as a violation
of the state's common law public trust obligations.” In that case, the legislature
granted lands underlying Lake Michiganto a private company. A few years later,
the legislature had second thoughts about the grant and repealed it. In an action
brought by the state to have the original grant declared invalid, the Supreme Court
of the United States stated that the title to the lands given in grant were different in
character from that which the state holds in lands ...state that they may enjoy the
navigation of the waters, carry on commerce over them, and have the liberty of
fishing therein freed from the obstruction or interferences of private parties.
Though the Court did not prohibit the disposition of trust lands to private parties, it
stated that the state cannot divest itself of authority to govern the whole of an area
in which it has responsibility to exercise its police power; to grant the entire
waterfront of a major city (Chicago) to a private company is, in effect, to abdicate
legislative authority over navigation. Subsequently, the superior Courts of some
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State like Massachusetts have modified the doctrine to suit the peculiar status and
uses of public resources prevalent in those states.

In 1970, however, Professor Joseph Sax gave new vigor to the doctrine by
suggesting that the doctrine could be expanded and utilized by public spirited
citizens to bring out environment litigation. In his view, “the doctrine required
courts to review with skepticism any government action that restricted or burdened
public access to potentially any natural resource.” Since the publication of his
initial work on the public trust, Courts in USA have applied the doctrine to require
public access to various resources other than navigable water and the lands
beneath, including the dry sand areas of a beach, portage routes near rivers, and
wildlife.

Many have also joined ‘the public trust cause', suggesting that the doctrine might
be extended to resources such as wild life and public lands. Others, however,
dismayed by the resurgence of the public trust doctrine, criticized it on grounds
that it lacks a coherent doctrinal basis, fails to reflect current environmental
concerns, requires a judiciary which has what can be called ‘a pro-environment
bias',and hence are undemocratic.
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Upholding the Doctrine under the State Constitutions

In the United States after the Illinois decision and the general popularity that has
emerged as a result many of their state Constitutions provisions that dealt with
protection of the environment was constructed with the doctrine of public trust in
mind. With the constitutionalization and expansion of the doctrine the state could
go around the argument that there is no doctrinal foundation to the laws of that
state as now the constitution will become the doctrine. The argument that the
successful implementation of the doctrine requires a pro environment judiciary
holds no ground. Lastly, the criticism that the doctrine is undemocratic can be
dispelled by constitutionalising public trust values. On the contrary, incorporating
public trust values in a state constitution reflects the state's democratic choice to
make a long-term commitment to those values.

In at least a few states in America, like we have explained the doctrine has
transformed from a guarantee under common law to broader Constitutional
requirement for the use and preservation of the environment.

- The doctrine of Public Trust in the Indian Legal system

The watershed as far as the doctrine of public trust in India came about after the
decision of the Supreme Court in the M.C Mehta v. Kamal Nath case.
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M.C Mehta v. Kamal Nath

Justice Kuldip Singh while delivering the judgment relied extensively on the
doctrine of public trust. The case dealt with certain forest land which was given on
lease to the Motel by the state government situated at the bank of River Beas. The
area which was ecologically fragile and full of scenic beauty should not have been
permitted to be converted into private ownership and for commercial gains.

The Judge touched up the history of the doctrine of public trust. He pointed out
that the this ancient Roman Empire legal theory came about on the idea that certain
common properties such as rivers, seashore, forests and air were held by the
government in trusteeship for the free and unimpeded use of the general public.
The contemporary concern about the environment bears a very close conceptual
relationship to this legal doctrine. Under the Roman law these resources were
either owned by no one (Res Nullius) or by everyone in common. Under the
English law however the sovereign could own these resources but the ownership
was limited in nature and the crown could not grant these properties to private
owners if the effect was to interfere with the public interest in navigation or
fishing.

The Supreme Court pointed out that our legal system is based on the English
common law which in turn includes the doctrine of public trust intrinsic to its
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jurisprudence. The State is the trustee of all natural resources which are by nature
meant for the use and enjoyment of the general public. Public at large is the
beneficiary of the seashore, running waters, airs forests and ecologically fragile
lands they have the right to access and enjoyment of such resources. The state is
the trustee to such public resources and consequently it is under a legal duty to
protect the natural resources. These resources meant for pubic use cannot be
converted into private ownership.

The court also pointed out that if there is a law made by the Parliament or the State
legislature the courts can serve as an instrument of determining the legislative
intent in the exercise of its powers of judicial review under the Constitution.

The court directed and ordered that the public trust doctrine is a part of the law of
the land and that the prior approval granted to the government to lease the forest
land for the creation of the motel is quashed and that the government of Himachal
Pradesh shall take over the areas and restore it to its original natural conditions.

Significantly the court also ordered that the motel shall pay compensation by way
of cost for the restitution of the environment and ecology of the area. The court
also asked the motel to show cause as to why pollution fine in addition be not
imposed on the motel.
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The second case to deal with on this subject is Th. Majra Singh v Indian Oil
Corporation where the petitioner objected to the setting of a plant for filling LPG
cylinders. The court reconfirmed that the public trust doctrine 'has grown from
article 21 of the constitution and has become part of the Indian legal thought
process for quite a long time.'

M.I Builders v. Radhey Shyam Sahu

The third case and perhaps one of the decisive case to deal with in this regard
is,M.I. Builders v Radhey Shyam Sahu,, where the Supreme Court has applied the
public trust doctrine.

The appeal was directed against the judgment of a Division Bench of the High
Court of Judicature at Allahabad. By a common judgment in three writ petitions,
High Court speaking through Shobha Dixit, J. held that the decision of the
Lucknow Nagar Mahapalika ('Mahapalika' for short), also now called Nagar
Nigam or Corporation, permitting M.I. Builders Pvt. Ltd. (the appellant herein) to
construct underground shopping complex in the Jhandewala Park situated,
Lucknow, was illegal, arbitrary and unconstitutional. Writ of mandamus was issued
to the Mahapalika to restore back the park in its original position within a period of
three months from the date of the judgment and till that was done, to take adequate
safety measures and to provide necessary safeguard and protection to the public,
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users of the park. High Court had noticed that the fact that the park was of
historical importance was not denied by the Mahapalika and also the fact that
perseverance or maintenance of the park was necessary from the environmental
angle and that the only reason advanced by the Mahapalika for construction of the
underground commercial complex was to ease the congestion in area. On taking
notice of the ground situations the court said that the public purpose, which is
alleged to be served by construction of the underground commercial complex,
seemed totally illusory.

On Appeal the court held that the facts and circumstances when examined point to
only one conclusion that the purpose of constructing the underground shopping
complex was a mere pretext and the dominant purpose was to favour the M.I.
Builders to earn huge profits. In depriving the citizens of Lucknow of their amenity
of an old historical park in the congested area on the spacious plea of decongesting
the area Mahapalika and its officers forgot their duty towards the citizens and acted
in a most brazen manner. By allowing the construction Mahapalika had deprived
its residents as also others of the quality of life to which they were entitled to under
the Constitution and the Act. The agreement smacks of arbitrariness, unfairness
and favourtism. The agreement was opposed to public policy. It was not in public
interest. Whole process of law was subverted to benefit the builder.
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DOCTRINE OF PUBLIC TRUST IN VARIOUS STATES IN INDIA

Kerala

In Kerala Plachimada Panchayat has issued orders refusing permission to extract

ground water due to environmental problems in the nearby areas. Following the
principles of Public Trust Doctrine court has upheld the steps taken by the
Panchayat. The State and its instrumentalities should act as trustees of this great
wealth. State has got a duty to protect ground water against excessive exploitation
and the inaction of the State in this regard will tantamount to infringement of the
right to life of the people guaranteed under Art 21 of the Constitution. Coca Cola
Company has no right to extract much of national wealth and the extraction of
ground water is illegal, the Court held. Kerala State Government has framed
legislation for protecting the fragile forest land following the said principle of
public trust doctrine. Kerala Forest (Vesting and Management of Ecologically
Fragile Lands) Act, 2002 was framed following the above principles.

Andhra Pradesh

Andhra Pradesh State Government has issued notification prohibiting conversion

of agricultural land for another purpose namely for irrigation or for some other
purpose whatsoever by the State/Board of Revenue. Andhra Pradesh HC, has held
that, the same cannot be said to be bad in law. Deep underground water belongs to
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the State in the sense that doctrine of public trust extends thereto. A person who
holds land for agricultural purpose may, subject to reasonable restriction that may
be made by the State may have the right to use water for irrigational purposes and
for the said purpose he may also excavate a tank. But under no circumstances, he
can be permitted to restrict the flow of water to the neighboring lands or discharge
the effluents in such a manner so as to affect the right of his neighbor to use water
for his own purposes.

Tamil Nadu

Reiterating the principles of "Public Trust" sand mining was stopped. Madras HC
directed to take appropriate action against the officers of the Government who
permitted the illegal removal of the sand and causing damage to the river.

CONCLUSION

The United States Supreme Court issued its landmark opinion in Illinois P.R Co
case on the nature of a state's title to its tide and submerged lands nearly 110 years
ago, and although courts have reviewed tidelands trust issues many times since
then, the basic premise of the trust remains fundamentally unchanged. The Court
said then that a state's title to its tide and submerged lands is different from that to
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the lands it holds for sale. “It is a title held in trust for the people of the State that
they may enjoy the navigation of the waters, carry on commerce over them, and
have liberty of fishing” free from obstruction or interference from private parties.

In India M.C Mehta v. Kamal Nath was the landmark judgment as far as the
doctrine of public trust was concerned. In that case Span motel, owned by the
family members of Shri Kamal Nath, Minister for Environment and Forests, Govt.
of India diverted the Course of river Beas to beautify the motel and also
encroached upon some forest land. The apex court ordered the management of the
Span motel to hand over forest land to the Government of Himachal Pradesh.

The Court delivered a land mark judgment and established principle of exemplary
damages for the first time in India. The Court said that polluter must pay to reverse
the damage caused by his act and imposed a fine of Rs Ten Lakhs on the Span
motel as exemplary damages. The Supreme Court of India recognized Polluter
Pays Principle and Public Trust Doctrine.

Various High Courts have evidently adopted the judgment as it is evidenced by the
decisions from across the country which has already been discussed in the last
chapter. The decision of the Kerala High Court in the Plachimada case also is
significant as the same has gained world wide attention.

4. UNEP
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Ans- The United Nations Environment Programme (UNEP), established in 1972,

addresses environmental issues at the global and regional level for the United
Nations. UNEP’s mission is “to provide leadership and encourage partnership in
caring for the environment by inspiring, informing, and enabling nations and
peoples to improve their quality of life without compromising that of future
generations.”

To accomplish its mission, UNEP:

 assesses environmental conditions and trends at the global, regional and

national levels;

 develops international agreements and national environmental instruments;

and

 Strengthens institutions for wise environmental management.

A major goal of the United Nations Environment Programme (UNEP) is to

catalyze and encourage international and national action for more effective
management of the environment. There are three fundamental tasks associated
with this goal: (a) Indentification of major environmental problems through
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environmental assessment; (b) Promotion of solution to these problems, and

prevention of new ones, through effective environmental management; and (c)
Measures to support the functional tasks of assessment and management, for
which education, training and information are important and indispensable tools.

The environment is considered not as an issue of discipline, separate and apart

from others, but as a dimension which must be brought to bear on a whole range
of activities which impinge upon the physical, biological, social and cultural
aspects of the human environment. By its given mandate, UNEP is charged to
promote environmental coordination among national and international
organizations, encourage them to give due emphasis to the environment in their
deliberations, and to catalyze actions which will enhance the prospects of a better
quality of life through a healthier environment resulting from effective
environmental management.

The fundamental principle of UNEP’s catalytic action in the area of environmental

education is based on the need to ensure that the environmental dimension is
adequately covered in education programmes. Actions within the functional tasks
of environmental assessment and management are expected to identify and
produce environmental materials which should be reflected in educational
curriculum content and methodology.
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The United Nations Environmental Programme, it is the voice for the United
Nations on all environmental problems and encompasses climate change, disasters
& conflicts, ecosystem management, environmental governance, chemicals &
waste, resource efficiency, and environment under review. It was the primary
tasked UN body involved in negotiating the Kyoto Protocol, which is the
international treaty which extends the 1992 United Nations Framework Convention
on Climate Change (UNFCCC) that commits State Parties to reduce greenhouse
gases emissions, based on the premise that (a) global warming exists and (b) man-
made CO2 emissions have caused it; and the subsequent the Doha Amendment,

B. National Green Tribunal, its Constitution, Functions and Powers.

Ans- Most conservationists would have heard of the National Green Tribunal
(NGT), and some may have already filed applications before it. This short primer
explains how, when and where to approach the NGT, and looks at the fundamental
difference between courts and tribunals, and the structure and jurisdiction of the
NGT.

The NGT was established on October 18, 2010 under the National Green Tribunal
Act 2010, passed by the Central Government. The stated objective of the Central
Government was to provide a specialized forum for effective and speedy disposal
of cases pertaining to environment protection, conservation of forests and for
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seeking compensation for damages caused to people or property due to violation of

environmental laws or conditions specified while granting permissions.

Structure

Following the enactment of the said law, the Principal Bench of the NGT has been
established in the National Capital – New Delhi, with regional benches in Pune
(Western Zone Bench), Bhopal (Central Zone Bench), Chennai (Southern Bench)
and Kolkata (Eastern Bench). Each Bench has a specified geographical jurisdiction
covering several States in a region. There is also a mechanism for circuit benches.
For example, the Southern Zone bench, which is based in Chennai, can decide to
have sittings in other places like Bangalore or Hyderabad, specifying jurisdiction
of each bench. Provided below is a link to all NGT zonal benches, addresses &
contact details.

The Chairperson of the NGT is a retired Judge of the Supreme Court, Head
Quartered in Delhi. Other Judicial members are retired Judges of High Courts.
Each bench of the NGT will comprise of at least one Judicial Member and one
Expert Member. Expert members should have a professional qualification and a
minimum of 15 years experience in the field of environment/forest conservation
and related subjects.

Powers
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The NGT has the power to hear all civil cases relating to environmental issues and
questions that are linked to the implementation of laws listed in Schedule I of the
NGT Act. These include the following:

1. The Water (Prevention and Control of Pollution) Act, 1974;

2. The Water (Prevention and Control of Pollution) Cess Act, 1977;

3. The Forest (Conservation) Act, 1980;

4. The Air (Prevention and Control of Pollution) Act, 1981;

5. The Environment (Protection) Act, 1986;

6. The Public Liability Insurance Act, 1991;

7. The Biological Diversity Act, 2002.

This means that any violations pertaining only to these laws, or any order /
decision taken by the Government under these laws can be challenged before the
NGT. Importantly, the NGT has not been vested with powers to hear any matter
relating to the Wildlife (Protection) Act, 1972, the Indian Forest Act, 1927 and
various laws enacted by States relating to forests, tree preservation etc. Therefore,
specific and substantial issues related to these laws cannot be raised before the
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NGT. You will have to approach the State High Court or the Supreme Court
through a Writ Petition (PIL) or file an Original Suit before an appropriate Civil
Judge of the taluk where the project that you intend to challenge is located.

Procedure for filing an Application or Appeal

The NGT follows a very simple procedure to file an application seeking

compensation for environmental damage or an appeal against an order or decision
of the Government. The official language of the NGT is English. For every
application / appeal where no claim for compensation is involved, a fee of Rs.
1000/- is to be paid. In case where compensation is being claimed, the fee will be
one percent of the amount of compensation subject to a minimum of Rs. 1000/-.

A claim for Compensation can be made for:

1. Relief/compensation to the victims of pollution and other environmental

damage including accidents involving hazardous substances;

2. Restitution of property damaged;

3. Restitution of the environment for such areas as determined by the NGT.

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No application for grant of any compensation or relief or restitution of property or

environment shall be entertained unless it is made within a period of five years
from the date on which the cause for such compensation or relief first arose.

Principles of Justice adopted by NGT

The NGT is not bound by the procedure laid down under the Code of Civil
Procedure, 1908, but shall be guided by principles of natural justice. Further, NGT
is also not bound by the rules of evidence as enshrined in the Indian Evidence Act,
1872. Thus, it will be relatively easier (as opposed to approaching a court) for
conservation groups to present facts and issues before the NGT, including pointing
out technical flaws in a project, or proposing alternatives that could minimize
environmental damage but which have not been considered.

While passing Orders/decisions/awards, the NGT will apply the principles of

sustainable development, the precautionary principle and the polluter pays
principles.

However, it must be noted that if the NGT holds that a claim is false, it can impose
costs including lost benefits due to any interim injunction.

Review and Appeal

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Under Rule 22 of the NGT Rules, there is a provision for seeking a Review of a
decision or Order of the NGT. If this fails, an NGT Order can be challenged before
the Supreme Court within ninety days.
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